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.» *

IJSTDEX

TO THE

MISCELLANEOUS DOCUMENTS

OF' THK

* SENATE OF THE UNITED STATES

FOR THE

FIBST SESSION OF THE FORTY-NINTH CONGRESS.

IN THIRTEEN VOLUMES.

Volume I. — No8. 1 to 46, iuclusive.

Volume 2. — Nos. 47 to 9H, inclusive, except No8. 71 and 82.

Volume 3.— No. 71.

Volume 4.— No. 82.,

Volume 5.— Nos. 99 to 170, inclusive, ei^cept Nob. 104, 120, 145, 152. 154, 155, 156, and

162.
Volume 6.— Nos. 104, 120, and 145.
Volume 7. — Nos. 152 and 154.
Volume 8.— Nos. 155 and 156.
Volume 9.— No. 162, Part 1.
Volume 10.— No. 162, Part 2.
Volume 11.— No. 162, Part 3.
Volume 12.— No. 171.
Volume 13.- No. 172.

WASHINGTON:

GOVERNMENT PRINTING OFFICE.

1886.

7186

IN IDEX

THE MISCELLANEOUS DOCUMENTS

THE SENATE OF THE UNITED STATES

FOR THE

FIK8T SESSION OF THE FORTY-NINTH CONGRESS.

Sabject. /

Academy of Sciences. Menioirs of Natioual, 18B5

Academy of Sciences. Report of National, 1885

Adjoom. Resolution by Mr. Hoar in relation to motion to ,

Agricaltme.' Resolution by Mr. Wilson, of Iowa, directing the Com-
miationer of, to report to the Senate tbe amount, in bushels, of wheat
banrested in each wheat-producing country during the present year.

Agriculture. Letter of the Commissioner of, in response to Senate res-
olution of June 29, 18d6, relative to the deliveiy of the Annual Report

A^culture. Letter from tbe Commissioner of, relative to the delay
m printing the First Annual Report of the Bureau of Animal Industry

AfCricnlture and Forestry. Testimony taken before the Committee on,
in relation to the manufacture and sale of dairy products

Alaska. Petition of John Arthur Lynch for the survey of a line for a
railway from the northwestern boundary of the United States throagh
British Columbia to ^ -.

Alaska. Concurrent resolution by Mr. Mandei-son authorizing the print-
ins of L. M. Turner's report on

Alaska. Report of L. M. Turner on

Alaska. Concurrent resolution by Mr. Manderson authorizing the print-
ing of E. W. Nelson's report on

Alawa. Report of £. W. Nelson on

Allison. Amendment proposed by Mr., to resolution reported by Mr.
Manderson directing the Committee on Printing to inquire into the

Subtle printing and binding, and the distribution and sale of public
ocumonts....:

America. Resolution by Mr. Hoar in relation to the celebration of the

four hundredth anniversary of the discovery of

America. Resolution by Mr. Hoar in relation to the celebration of the

four hundredth anniversary of the discovery of

American citizens. Resolution by Mr. Call in relation to the arrest' and

detention in Mexico of

American citizens. Resolution reported by Mr. Sherman in relation to

the imprisonment of, in Mexico. (Part 2) -

American fishing vessels. Resolution by Mr. Edmunds relative to the

rights of

American, Atlantic and Pacific Ship -Canal Company. Protest of,

against the incorporation of the Maritime Canal Company of Nic-

sra^a

No.

Vol.

•

154

153

158

135

108

131

Amencan artists in Rome. Petition of, for the abolition of the duty
on works of art

American fishing vessels. Resolutions of the legislature of Massachu-
Mtts in relation to the seizure by the Canadian authorities of

American Medical Association. Memorial of committee of the, relative
to prevention of yellow lovm-

43
155

44
156

132
161
161
137
137
146

139

127

129

5
5
5
5
5
5

5
1
5
5

INDEX TO SENATE MISCELLANEOUS DOCUMENTS.

Subject.

American yessels. BeeolntioD b^ Mr. Hoar requesting the President to
inform the Senate of all faots in his possession in regard to the seiz-
ure or detention in any foreign ports of any

Amidon, Georgiana M. Petition of Mrs., for the speedy settlement of
the Ward estate claim

Animal Industry. Letter from the Conimissiouer of Agriculture rela-
tive to the delay in printing the First Aunual Report of the Bureau of.

Art. Petition of American artists in Rome for the abolition of the duty
on works of

Astronomical-Meteorological observatioDs, ltid3

Attomev- General. Resolution by Mr. Mahone directiniz: the, to in-
fonn the Senate as to the number of oases in which the United States
was a party, pending in the circuit and district courts of the east-
em district of Virginia, in 1884

Attorney-General. Ra«*olntions reported by Mr. Edmunds, expressing
condemnation of the refusal of the, to send to the Senate copies of
papers called for by resolution of Jaouary 25, 1886

Attorney-General. Resolution by Mr. Morgan in relation to the refusal
of the, to furnish copies of papers callM. for by resolution of Jan-
nary 25, 1886

Attorney- General. Amendment intended to be proposed by Mr. Van
Wyck to resolution reported for the Judiciary Committee relative to
the refusal of the, to furnish copies of certain papers

Attorneys-General. Official opinions of the, from 1789 to 1886, Digest
of the

Beck. Resolution by Mr. , requesting the President to cause iuq^uiry to be
made concerning fees paid United States consular or commercial agents .

Beck. Resolution by Mr., in relation to the consideration of House
bills reported favorably by Senate committees

Beck. Resolution by Mr., instructing the Committee on Finance to in-
quire whether the laws relating to the payment of custom duties and
tne disbnrsementM thereof have been obeyed

Beck. Resolution by Mr., as a substitute mr resolution by Mr. Kustis
relative to the redemption of Government bonds

Berlin. General act of the conference of

Berry. Cod current resolution by Mr., in relation to bath-house and
hot-water privileges upon the reservation of GovernuK^nt lands at
Hot Springs, Arkansas

Berry. Concurrent resolution by Mr., in relation to bath-house and
hot-water privileges apon the reservation of Government lands at
Hot Springs, Arkansas. (Part 2)

Black, Hon. John C. Letter of, in relation to increasing the rate of
pension to minor children

Blair. Resolution by Mr., authorizing the printing in the Rkcord of
the reports of the majority and views of the minority of the Com-
mittee on Pensions on certain bills

Blair. Resolution by Mr., directing the Committee on Education and
Labor to continue the investigation of the relations between capital
and labor

Bonds. Resolution by Mr. Eustis, expressing the opinion of Concress
that the bonds payable February 1, 1886, should be paid in silver dollars.

Bonds. Resolution by Mr. Beck, relative to the redemption of Gov-
ernment '.

Bonds. Resolution by Mr. Ingalls, relative to the redemption of na-
tional

Bowen. Resolution by Mr., instracting the Committee on Indian Af-
fairs to inquire intoV-he expediency of removing all the Indians in
the United States to the Indian Territory

Bryan, C. B., & Co. Amendment proposed by Mr. Harris to resolution
to refer the claim of, to the Court of Claims

Butler. Resolution by Mr., instructing the Committee on Territories
to inquire and report by what authoritya so-called State legislature
htm been organised in the Territory of Dakota

No.

Vol.

138^

118

108

152

1
7

171

1G5

45
124

164

167
26
29
36

32
92

1
2

1
5

5
1
1
1

1
2

INDEX TO 8£NAT£ MISCELLANEOUS DOCUMENTS.

Subject.

Calendar. HesolntioD by Mr. Edmunds, in relation to the considera-
tion of mattttrs on the

California. Eulogies on John F. Miller, Senator from

Call. Resolution by Mr., requesting the President to take certaiu
action concerning the demands of the Spanish Government for carry-
ing into effect the treaty of 1819 for the cession of Florida

Call. Resolution by Mr., instructing the Committee on the Judiciary
to report u bill for the retirement or removal of United States district
and circuit judges <.

Call. Rttsolntiou by Mr., direotinff the Committee on Public Lands to
report a bill for the forfeiture oi unearned railroad land grants

Call. Ke-solution by Mr., instructing the Committee on Military Ailairs
to re]Mirt a bill modifying the Civifservice laws so that Union soldiers
and iMiihirs shall not be required to submit to examination before
ap{>oiiitujent to any offices embraced in the law

Call. Resolution by Mr., relative to the discharge of R. A. Fennel, a
Senate employ^

Call. Resolution by Mr., directing the Committee on the Judiciary to
inquire what legislation is necessary to require United States courts,
when they take possession of the railroad property of corporations
in the several States, to carry into effect the obligations of the char-
ter of incorporation

Call. Resolution by Mr., in relation to the arrest and detention of Amer-
ican citizens in Mexico

Cameron. Resolution by Mr., declaring that it is inexpedient during
this Congress to pass upon any measure looking to a reduction of
tariff duties ;...

Canaday, W. P., Sergeant-at-Arms of the Senate. Report showing
amount realized from sale of waste paper

Canaday, Hon. W. P. Letter of, giving names of the private secretai ies
of Senators

Capitol, North O Street and South Washington Street Railway. State-
ment of operations of the

Census. Wines* report on the defective classes, Tenth Census

Chinese immigration. Concurrent resolution by Mr. Mitchell, of Ore-
g|on, relative to

Chinese Empire. Motion reported by Mr. Sherman to make bills re-
ported from the Committee on Foreign Relations to indemnify ci rtaiu
subjects of the, for losses sustained by violence of a mob at liock
Springs

Chinese. Memorial adopted by a convention held at Sacramento, Cal.,
in relation to the

Church and state. Resolution by Mr. Morgan, declaratory against the
union of

Civil Service Reform. Resolution by Mr. Vance directing the Commit-
tee on, to report Senate bill 839

Clerks. Resolution by Mr. Ingalla requesting the President to furnish
to the Senate certaiu iuformf^tion concerning the removal of, embraced
within the civil service act

Coast and Geodetic Sur^'^ey. Testimony taken before the joint commis-
sion authorized to investigate the

Cockn-ll. Resolutiftu by Mr., in relation to certain lands donated by
Congr«-ss toaid in the constrrfctiou of railroads in the State of Michigan.

Coke. Resolution by Mr., to discharge the Committee on Finance from
the further consideration of joint resolution (H. Res. 126) directing
the payment of the surplus in the Treasury on the public debt

Colombia Institution for the Deaf and Dumb. Annual report of the
president of the

Columbus, Christopher. Concurrent resolution by Mr. Morrill to set
apart a site for a statue of

Collectors of internal revenae. Resolution by Mr. Morrill directing the
Secretary of the Treasury to inform the Senate whether any collectors
of internal revenue, not contirmed by the Senate, have received any
aalary pertaining to the office of.. «..

168
145

VoL

100

5
6

103

137

53
172

112

110

107

1-28

149

102

INDEX TO SENATE MISCELLANEOUS DOCtJMENTfi.

Subject.

ConDecticut. Kesolntion of the general assembly of the State of, in favor
of the enaotmeDt of a law regnlatiug the ascertainment and counting
of the votes of Presidential electors ,

Congress. Reportof the Librarian of ,

Congressional Library. Letter from George Ticknor Curtis relative to
the erection of a building for the

Congressional Directory ,

Constitution of the United States. Resolution by Mr. Hoar in relation
to the celebration of the centennial anniversary of the adoption of the

Constitution of the United States. Resolution by Mr. Hoar in relation
to the celebration of the centenni&l anniversary of the adoption of the

Consular or commercial agents. Resolnrion by Mr. Beck requesting the
President to canse inquiry to be made concerning fees paid United
States ,

Court of Claims. Statement of €ho chief clerk of, showing Judgments
rendered by said court for the ^ear ending >< ovember 30, 18t:i5

Cowdon. Letter of Capt. John, in relation to the Lake Borgne outlet. .

Cullom. Resolution reported by Mr., authorizing the Committeeon Ex-
penditures of Public Money to sit durinfl; the recess of Congress

Curtis, George Ticknor. Letter from, relating to the erection of a build -
ing for the accommodation of the Congressional Library

Dairy products. Testimony taken before the Committee on Agriculture
and Forestry in regard to the manufacture and sale of imitation

Dakota. Resolution by Mr. Harrison to print extra copies of report of
the Committee on Territories, to accompany bill to provide for the ad-
mission of ! !:...,

Dakota. Resolutions adopted by the constitutional convention for South .

Dakota. Resolution by Mr. Vest relative to the memorial from persons
calling thf'mselves the State executive committee of the State of

Dakota. Resolution by Mr. Butler, instructing the Committee on Ter-
ritories to inquire and report to the Senate under and by what author-
i y a so-called State legislature has been organized in the Territory of.

Dawes. Resolution by Mr. , calling for copies of all papers touching the
official conduct of Indian Inspector Henry Ward

Denver, J. W., president, and A. M. Kenaday, secretary, of the Na-
tional Association of Veterans of the Mexican war. Petition of

District of Columbia. Resolution by Mr. Van Wycl^ directing the Com-
mittee on the, to obtain from the proper officers of the street railways
in the District of Columbia a sworn statement of capital stock, &c..

District of Columbia. Resolution by Mr. Van W.\ ck directing the Com-
mittee on the, to investigate the allegation that no local taxes have
been paid by the national banks in the District of Columbia

District of Columbia. Memorial of citizens' committee of the, against
the abolition of the school board in the

District of Columbia. Statement in relation to gas works in the

District of Columbia. Resolution by Mr. Van Wyck in relation to the
Commissioners of the

District of Columbia. Resolutions adopted at a meeting of citizens
relative to the management of the public schools in the

District of Columbia. Letter of the Commissioners of tbe, in relation
to a Potomac River bridge

District of Columbia Resolution by Mr. Van Wyck directing the Com
mittee on the, to report a bill to prohibit the consolidation of the
Washington and Georgetown Gas-Light Companies

Dolph. Resolution by Mr., directing the Secretary of the interior to
furnish the Senate copies of maps, papers, «&c., relating to the loca-
tion of wagon roads in the State of Or»*gou

Eads, James B. Resolution by Mr. Logan to refer the letter of, to the
Committee on Rules

11
89

33
15

161

163

12
6

i:w

160
33

131

28
144

1
5

114

125

1
2

1
1

5
1

2
2

79 I

INDEX TO SENATE MISCELLANEOUS DOCUMENTS.

VII

Sabjeot.

Vol.

EdmondB. Beaolntion by Mr., directing the Committee on Foreign Re-
lations to inqnire into the rights of American fishing vessels

Edmonds. Resolution by Mr., in relaiion to the consideration of mat-
ters on the Calendar

Edmonds. Resolutions reported by Mr., expressing condemnation of
the relusal of the Attorney-General to send to the Senate copies of
papers called for by resolution of January 25, 1886

Education and Labor. Resolution by Mr.lblair directing the Commit-
tee on, to continue the iuTestigation of the subject of the relations
between labor and capital

Elsefler, William L., relative to the Jetties at the month of the Mississippi
River. Letter of

Election Cases. Compilation of Senate

Eulogies on Senator John F. Miller

Eostis. Resolution by Mr., expressing the opinion of Congress that the
bonds payable February 1, 1886, should be paid in silver dollars

Enstis. Resolution by Mr., directing the Committee on Finance to in-
vestigate certain official transactions of the assistant treasurer at New
Orleans

Enstis. Resolution by Mr., directing the Committee on Finance to
make certain inquiries concerning the official action of the assistant
treasurer at New OrleauB,La. (Part 2)

Evarts. Resolution by Mr., requesting the President to open corre-
spondence with the principal commercial powers in relation to silver
bullion and silver coinage

Eiecotive nominations Resolution by Mr. Riddleberger relative to
the consideration of ''objected"

Executive nominations. Resolution by Mr. Riddleberger in relation to .

Executive nominations. Resolution by Mr. Piatt relative to the con-
sideration of

Executive nominations. Amendment proposed by Mr. Piatt to the res-
olution relating to the consideration of. (Part 2)...

Executive nominations. Amendment by Mr. Riddleberger to resolution
Bobmitted by Mr. Piatt relative to the consideration of. (Part 3) —

Executive nominations. Amendment by Mr. Morrill to resolution sub-
mitted by Mr. Piatt in relation to the consideration of. (Part 4)

£x<fCDtive sessions. Resolution by Mr. Logan in relation to

Executive sessions. Amendmsut proposed by Mr. Logan to his resolu-
tion relative to

Exfienditures of Public Money. Resolution reported by Mr. Cullom
Authorizing the Committee on, to sit during the recess of Congress. ..

Expenditures of Public Money. Resolution by Mr. Harrison directing
the Committee on, to inquire into certain statements contained in the
Isst annual report of the Commissioner of Pensions

Eennel, R. A. Resolution by Mr. Call relative to the discharge of

Keniiell, R. A. Resolution reported by Mr. Vance authorizing the Sec-
retary of the Senate to pay, for services as messenger

Finance. Resolution by Mr. Coke to discharge the Committee on, from
farther consideration of House joint resolution 126

Finance. Resolution by Mr. Beck instructing the Committee on, to in-
qnire whether the laws relating to the payment of custom duties
and the disbursement thereof have been obeyed

Finaoce. Resolution by Mr. Morgan directing the Committee on, to
inquire and report whether Congress has the power to lay a tax on
tbe capital stock of corporations in the United States

Finance. Resolution by Mr. Enstis directing the Committee on, to in-
vestigate certain official transactions of tbe assistant treasurer at
New Orleans

Finance. Resolution by Mr. Enstis directing the Committee on, to
make certain inquiries concerning tbe official action of the assistant
treasurer at New Orleans, La. (Part 2)

Fishing rights between the United States and Great Britain. Resolu-
tion by iix. Frye to appoint a commission to consider and settle

167

26
65
65

166

136
57

87
160

100
170
149

65
59

6
2

5
2
6

2
2

5
2

2
2

vm.

INDEX TO SENATE MISCELLANEOUS DOCIAIENTS.

Sabjeot.

Vol.

146

159

6
2

Florida. Resolution by Mr. Call, reqaestiDg the President to submit
to arbitration the demands of the Spanish Government for carrying
into effect the treaty of 1819, for the cession of

Foreign Relations. Resolution by Mr. Edmunds, directing the Commit-
tee on, to inquire into tho rights of American fishing vessels ,

Forge, Rev. Ernest, and otlnrs. Petition oL praying that a s«t of al-
tars to be used in the Catholic Church or St. John the Evangelist,
La Fayette Parish, La., may be admitted free of import duty

Frye. Resolution reported by Mr., authorizing the Committee on Rules
to sit daring the recesM

Frye. Concurrent resolution by Mr., proposing joint rules of the two
houses

Frye. Concurrent resolution by Mr., proposing joint rules of the two
houses. (P>rt 2)

Frye. Resolution by Mr., in relation to the appointment of a commis-
sion to couKider and settle the fishing rights between the United States
and Great Britain ,

Frye. Resolution by Mr., iu relation to the appointment of a commis-
sion to consider the question of fishing rights of the Governments of
the United States and Great Britain on the coast of the United States
and British North America

Gallaudet, £. M., president of the Columbia Institution for the Deaf
and Dumb, near Washington, D. C. Annual report of

Garfield, James A. ' Proceedings in Congress in accepting the statue of
the late*

Gas works in the District of Columbia. Statement iu relation to

George. Resolution by Mr., to recommit Senate bill No. 714 to the Com-
mittee on the Judiciary

Gorman. Concurrent resolution by Mr., for the appointment of a select
committee to consider the subject of a celebration in 1889 at Wash-
ington

Gorman. Resolution by Mr., directing the Secretary of the Interior to
furnish the Senate the names of persons employed in receiving, fold-
ing, and distributing public documents

Gibson. Resolution by Mr. , calling upon the Secretary of the Interior for
information concerning private land claims in the Sta^ of Louisiana. .

Gillmore, General Q. A. Letter of, relative to the improvement of the
navigation of the Mississippi River

Harris. Amendment proposed by Mr., to resolution, to refer the claim
of C. B. Bryan ^ Co. to the Court of Claims

Harris. Resolution by Mr., to amend the third clause of the Sixteenth
Rule of the Senate

Harrison, J. O. Petition of

Harrison. Resolution by Mr., to admit Hon. C. G. Moody, of Dakota,
to the fioorot'tho Senate

Harrison. Hesulntion by Mr., directing the Committee on Expenditures
of Public Money to inquire into statements contained in the report of
the Commissioner of Pensions

Harrison. Amendment proposed by Mr., to the amendment of Mr. Voor-
hees to resolution providing for an investigation into certain allega-
tiouH contained iu the report of the Commissioner of Pensions.
(Part 2)

HaskelJ, J. R. Testimony on the, multicharge gun

Harrison. Resolution by Mr. , to print extra copies of report of the Com-
mittee on Territories, to accompany bill for the admission of Dakota..

Hendricks, Thomas A. Resolution by Mr. Voorhees relative to the death
of the late Vice-President of the United States

Hendricks, Thomas A. Eulogies on the late Vice-President

Hoar. Resolution by Mr., providing that upon a motion to adjourn to a
day other than the next legislative day the question shall always be
taken in open session and by yeas and nays

102

104
73

119

93
150
126

147
101

5
5

23
157

1
5

1
120

1
6

INDEX TO SENATE MISCELLANEOUS DOCUMENTS.

Subject.

Vol.

Hoar. Keaolntion by Mr., in relation to the celebration of the centennial
annlTeraaiy of the adoption of the Constitution of the United States
and that of the four hundredth anniversary of the discovery of

America

Hoar. Resolution of Mr., in relation to the celebration of tho centennial
anniversary of the adoption of the Constitution of the United States
and that of the four hundredth anniversary of the discovery of
America

Hoar. Resolution by Mr., declaring that in the opinion of the Senate
it is not out of order when a private bill is under consideration to
read or r^fer to a report upon the same made to the House of Rep-
resentatives ' .^

Hoar. Resolntion reported by Mr., authorizing the Coromittoe on
Privileges and Elections to investigate the charges affecting the title
to the seat of Hon. Henry B. Payne ,

Hoar. Resolution by Mr., requesting the President to inform the Sen-
ate of all facts in his possession in regard to the beiznre or detention
in any foreign ports of any American vesssel

Hot Springs, Ark. Concurrent resolution by Mr. Berry, in relation to
bath-house and hot- water privileges upon the reservation of Qovern-
ment lands at

Hot Spring, Ark. Concurrent resolution by Mr. Berry, in relation to
bath-house and hot- water privileges upon the reservation of Qovern-
ment lands at. (Part 2^

Honse bills. Besolntion oy Mr. Beck, in relation to the consideration
of

HoDse of Representatives. Resolution by Mr. Hoar, declaring that in
the opinion of the Senate it is not out of order when a private bill is
under consideration to read or refer to a report made to the

Huntley, Elias Dewitt, Chaplain of the Senate. Letter of resignation of.

I. -

Indian Affairs. Resolntion by Mr. Bowen, directing the Committee on,
(o inquire into the expediency of removing all the Indiaus iu the
United States to the Indian Territory

Indian traders. Resolution by Mr. Wilsoo, of Iowa, directing the Com-
mittee on Indian Affairs, to investigate the subject of the appoint-
ment of

Indian Territory. Resolution by Mr. Maxey, directing the Committee
on the Judiciary to inquire what legislation may be necessary to sub-
ject to forced sale, levy, and execution property removed from any
State into the

Infpdls. Resolution by Mr., relative to the suspension of silver coinage.

Inffalls. Resolution by Mr., directing tho Secretary of Treasury, to in-
ionn the Senate what proportion of the bonds called for payment
February 1, 1886, are held by national banks

Ingalls. Resolution by Mr., in relation to a seal for the use of the Senate .

Ingalls. Resolution bv Mr. , directi ng the Postmaster-Qeneral to inform
the Senato whether Le received the resolntion of March 4, calling for
inform ation concerning fourth-cla^s postmasters

Ingalls. Resolution by Mr., directing the Secretary of the Interior to
inform the Senate whether the Commissioner of the General Land
Office ishued an order to suspend the operation of the pre-emption,
the tiiitlicr-culture, and the desert-land acts

Inealls. Resolution by Mr., requesting the President to furnish to the
Senate certain information concerning the removal of clerks embraced
within the provisions of the civil-service act of January' 16, 1883

Interior. Resolution by Mr. Gibson, calling upon the Secretary of the,
for information concerning private land claims in the State of Lou-
isiana

Interior. Resolution by Mr. Wilson, of Iowa, directing the Secretary
of the, to communicate to the Senate a copy of each report made by
the Government directors of the Union Pacific Railroad Company.. . .

Interior. Resolntion by Mr. Dolph, directing the Secretary of the, to
iumlrti the Senate copies of maps, papers, &c., relating to the loca-
tion of wagon roads in the State of Oregon

161

103

142

i:)8

165

123

5
2

32
IIG

98
30

36
41

2
1

1
1

121

128

150

INDEX TO SENATE MISCELLANEOUS l>OCtJMENTS.

Subject.

Interior. Resolution by Mr. Dawes, directing the Secretary of the, to
communicate to the Senate copies of all papers touching the official
conduct of Indian Inspector Henry Ward

Interior. Resolution by Mr. Plumb, directing the Secretary of the, to
inform the Senate as to the number of special agents employed in
his Department for the detection of frauds in the entries of public
lands

Interior. Resolution by Mr. Gorman, directing the Secretary of the,
to furnish to the Senate the names of persons employed in receiving,
folding, and distributing; public documents ,

Interior. Resolution by Mr. Incalls, directing the Secretary of the, to
inform the Senate whether the Commissioner of the General Land
Office issued an order to suspend the operation of the pie-emption, tbe
timber-culture, and the desert-land acts

Internal Revenue. Letter of the Commissioner of, in relation to bill
(H. R. 8738) to amend certain sections of the Revised Statutes which
make a distinction in tbe mode of packing and selling cut tobacco . . .

International Law . Wh arton's Digest of ( in three parts)

«
J-

Judiciary. Resolution by Mr. Vest, directing the Committee on the, to
make certain inquiries concerning the chartered rights and powers
of corporations owning 'and operating street railroads in the city of
Washmgton, D. C

Judiciary. Resolution by Mr. George, to recommit to the Coftimitt«e
on the, Senate bill No. 714, with iostrijction to report it so amended
as to provide for voluntary proceedings in bankruptcy only

Judiciary. Resolution by Mr. Call, directing the Committee on the, to
inquire what legislation is necessary to require the courts of the
United States, when they take possession of railroad property of cor-
porations, to carry into (>fiect the obligations of the charter of incor-
poration

Judiciary. Resolution bv Mr. Maxey , directing the Committee on the,
to inquire what legislation may be necessary to subject property
moved from any State into the Indian Territory to forced sale, levy,
and execution

Judiciary. Resolutions reported by Mr. Edmunds, from the Committee
on the, in relation to tbe refusal of the Attorney-General to furnish
copies of certain papers

Judiciary. Resolution by Mr. Call, instructing the Committee on tbe,
to report a bill for the retirement or removal of United States district
and circuit Judges

Lake Borgne outlet. Letter of Capt. John Cowdon, in relation to the. .

Librarian of Congress. Report of the

Logan. Resolution by Mr., in relation to executive sessions of the
Senate

Logan. Amendment proposed by Mr., to his resolution relative to ex-
ecutive sessiouM. (Part 2.)

Logau. Resolution by Mr., to refer to the Committee on Rules the let-
ter of James B. Eads

Louisiana. Concurrent resolution of tbe legislature of the State of,
relative to the national defenses

Louisiana. Resolution by Mr. Gibson, directing the Secretary of the
Interior to communicate to the Senate certain information concerning
private land claims in the State of

Lynch, John Arthur. Petition of, for the survey of a line for a railway
from the northwestern boundary of the United States through British
Columbia to Alaska

69
93

121

151
162

Vol.

146
119

2
2

5
5

103

133

5
2

140

150

XII

INDEX TO SENATE MISCELLANEOUS DOCUMENTS.

Subject.

Morgan, Conoarrent resolntion by Mr., requesting the Preeident to call
the attention of the Qovemment of Nicaragua to certain claims held
by citizens of the United States against that Govemmeht

Morgan. Resolution by Mr., in relation to the laws which prohibit the
importation of foreign-built ships

Morgan. Resolution by Mr., relative to the appointment of officers of
the United States who may be required to participate in the affairs
of any church

Morgan. Motion by Mr., providing for a recess of the Senate on each
day at 2 o*clock

Morrill. Resolution by Mr., to set apart a site for a statue of Christo-
pher Columbus

Morrill. Resolution by Mr., directing the Secretary of the Treasury to
furnish information to the Senate as to whether collectors of internal
revenue not coulirmed by the Senate have received any salary per-
taining to the office

Morrill. Amendment proposed by Mr., to resolution 8ubmitt<>d by Mr.
Piatt, in relation to tne consideration of Executive noniinatiouH.
(Part 4.)

Multicharge gnn. Testimony on the J. R. Haskell 1

National Academy of Sciences. Menorial of, 1883

National Academy of Sciences. Report of, 1885 . . • •

Naval Academy. Views of members of the Committee on Naval Affairs
in relation to graduates of the

Naval Academy. Views of members of the Committee on Nay^I Affairn
in relation to graduates of the. (Part 2)

Naval Affairs, views of members of the Uommittee on, in relation to
graduates of the Naval icademy

Naval Affairs. Views of members of the Committee on, iu relation to
graduates of the Naval Academy. (Part 2)

National Banks in the District of Columbia. Resolution by Mr. Van
Wyck directing the Committee on the District of Columbia to in-
vestigate the allegation that no local taxes have been paid by the

National Banks. Resolution by Mr. Ingalls directing the Secretary of
the Treasury to inform the Senate what proportion of the bonds
called for payment February 1, 1886, are held by

National defenses. Concnrrent resolntion of the general assembly of
the State of Louisiana relative to the

Navy. Letter of the Secretary of War to accompany an amend tne nt
proposed by Mr. Logan to bill S. 1302, authorizing the appointment
of an Assistant Secretary of the

Newbnrg (N. Y.) monnment and centennial. Concurrent resolntion re-
ported by Mr. Manderson, anthorizing the printing of the report of
the Joint Select Committee on the

Nelson, E. W. Concurrent resolntion by Mr. Manderson to print the

report on Alaska by

Report of

Newman, Angle F. Petition of Mrs., in relation to woman suffrage in
Utah

New Orleans. Resolntion by Mr. Enstls directing the Committi>u on
Finance t4> investigate certain official transactions of the assistant
treasurer at >w

New Orleans. Resolution by Mr. Enstis directing the Committee on
Finance to investigate certain official transactions of the assistant
treasurer at. (Part 2)

Nicaragua. Remonstrance of the American Atlautic and Pacific Ship-
Canal Company against the incorporation of the Maritime Canal Com-
pany of — — •

Nicaragua. Concurrent resolution by Mr. Morgan in relation to claims
held by citizens of the United States against the Government of

Nicholson, Rear- Admiral J. W. A. Letters relating to the request of,
to be authorized to accept from the King of Sweden and Norway a
gold medal - ^

No.

Vol.

109

27;

1
61

55
157

2
5

154
153

7
5

36
140

134

156

1
8

VJ2

139

xnr

INDEX TO SENATE MISCELLANEOUS DOCUMENTS.

Snbjeot.

PostmasteT-General . Besol ation by Mr. Ingalls direoting the, to inform
the Senate whether he received the reaolation of Maroh 4 calling for
information concerning fonrth-claHS postmasters

Potomac Flats. Letters relating to the improvement of the

Potomac River brid^re. Letter of the Commissioners of the District of
Columbia in relation to

President of the United States. Resolution by Mr. Hoar requesting
the, to inform the Senate of all facts in his possession in regard to
the seizure and detention in any foreign ports of any American ves-
sels

President of the United St<ates. Resolution by Mr. Beck requesting the,
to cause inquiry to be made concerning fees paid United States con-
sular or commercial asent^

Presidential Electors. Resolution of the legislature of Connecticut in
favor of the enactment of a law regulating the ascertainment and
counting of the votes of

Printing. Resolution reportod by "Mr. Manderson, directing the Com-
mittee on, to inquire into the public printing and binding and the
distribution and sale of public documents

Public Buildings and Grounds. Resolution by Mr. Riddloberger, re-
questing the Committee on, to report to the Senato the aggregate
amount of money proposed to be appropriated by bills reported
from

Public Buildings and Grounds. Concurrent resolution by Mr. Stanford,
directing the Committoe on, to investigate and report upon certain
charges against Samuel Strong '.

Public Bnildings and Grounds. Resolution by Mr. Van Wyck, direct-
ing the Committee on, to report a bill to regulate the price of gas
furnished by the Washington Gas-Light Company

Public Buildings And Grounds. Resolution by Mr. Van Wyck, direct-
ing the Committoe on, to confer with the Architect of the Capitol
relative to the erection of buildings for the use of employes of the
street railways

Public debt. Resolution by Mr. Coke to discharge the Committee on
Finance from the further consideration of House Joint resolution No.
126^ direciing payment of the surplus* in the^ Treasi^ry on the

Public Lands. Resolution by Mr. Call, directing the Committee on, to
report a bill for the forfeiture of unearned railroad land grants

Public Lands. Resolution by Mr. Mitehell, of Oregon, directing the
Committee on, to make certain inquiries concerning lands granted
to the State of Oregon to aid in the oonstruction of military wagon
roads ...

Public Lands. Resolution by Mr. Mitchell, of Oregon, directing the .
Committee on,* to inquire into the truth of certain allegations con-
cerning lands granted to the Stato of Oregon to aid in the construc-
tion ofmilitary wagon roa<ls. (Part 2)

Public Printer. Annual Report of the, for fiscal year ending June 30,
lr^85

Public Printer. Letter from the, iu response to Senate resolution of
May 4, directing him to inform the Senate the cause of the delay in
furnishing copies of the first annual report of the Bureau of Animal
Industry

Railroad land grants. Resolution by Mr. CalL directing the Commit-
tee on Public Lands to report a bill for the forfeiture of unearned. ..

Riddleberger. Resolution by Mr., in relation to removals and suspen-
sion from office

Riddleberger. Amendment by Mr., to resolution submitted by Mr.
Piatt relative to the consideration of Execntive nominations.
(Part 3)

Riddleberger. Resolution by Mr., requesting the Committee on Public
Bnildings and Grounds to re])ort to the Senate the aggregate amount
of money proposed to be appT(»priated by bills reported from that
oommiuee ;

VoL

86
105

114

138
12
11

132

07
58

149
52

•

62
111

52
57

55
67

INDEX TO SENATE MISCELLANEOUS DOCUMENTS.

Subject.

Biddleberger. Beaolntion by Bir.^ in lelation to the consideration of
''objected'' Execntive nominations

Biddleberger. Resolution by Mr., providing that all matters other
than those of treaties shall be oonsiderea by the Senate in open
session

Role. Resolution by Mr. Harris to amend the third clause of the six-
teenth

Rales. Resolution by Mr. Logan to refer the letter of James B. Eads
to the Committee on

Rules. Resolution reported by Mr. Frye, authorizing the Committee
on, to sit during the recess of

Bules. Concurrent resolution by Bir. Frye proposing Joint

Roles. Concurrent resolution by Bir. Frye proposing Joint. (Part 2)..

Ssntee Sioux Indians of Knox County, Nebraska. Petition of, prayins
the passage of a law securing to tnem patents to their lUnds, and
ri^ts of citizenship

School board in the District of Columbia. Memorial of citizens' com-
mittee against the abolition of the

Schools in the District of Columbia. Resolutions adopted at the meet-
ing of citizens relative to the management of public

Sciences. Memoirs of National Academy of, 1885

Sciences. Report of National Academy of, 1885

Scientific bureaus of the Government. Testimony taken before the joint
commission authorized to investigate the

Seal for the use of the Senate. Resolution by Mr. Ingalls making the
Secretary the custodian of the

Secretaries of Senators. Letter of Sergeant-at-Arms Canady giving the
names of private

Senate. Motion by Bir. Morgan providing for a recess of the

Senate. Resolution by Mr^ Kiddleberger to consider all matters other
than those of treaties in open session of the

Senate. Resolution by Bir. Hoar, declaring that in the opinion of the,
it is not out of order, when a private bil] is under consideration, to
read or re&r to a report made to the House of Representatives

Senate. Resolution by Mr. Logan in relation to executive sessions of
the

SeweU. Resolution by Bir., directing the Secretary of the Treasui*^ to
fomish the Senate an estimate of the amount due the Soldiers'

Home

Shannon, Mrs., Mary, widow and administratrix of the estate of Joseph
R. Shannon, deceased. Memorial of

Sherman. Motion reported by Mr., from the Committee on Forei^
Relations, to make bills to indemnity certain Chinese subjects special
orders for Monday, May 10 ..|

Sherman. Resolution reported by Mr., as a substitute for resolution
submitted by Bir. Call, reonesting the President to communicate to
the Senate information ana correspondence in his possession concern-
the imprisonment of American citizens in Mexico. (Part 2)

Ships. Resolution by Bir. Morgan, in relation to the laws which pro-
hibit the importation of foreign- built

Signal Service. Testimony taken before the joint commission in-
-itrocted to investigate the

Silver coinage. Resolution by Bir. Ingalls relative to the suspension of. .

Silver coinage. Resolution bv Mr. Evarts requesting the President to
open correspondence with the principal commercial powers in rela-
tion to silver bullion and

Soldieis' Home. Resolution by Mr. Sewell directing the Secretary of
the Treasury to furnish the Senate an estimate of the amount due
the

State. Resolution by Mr. Plumb directing the Secretary of, to furnish
the Senate information concerning the production in foreign coun-
tries of wheat, com, rye, and cotton, amount consumed, imported
into, ozported firom, &o

147

159
3
3

Vol.

110

137

JL09

82
30

166

169

5
1
1

•

91
154
153

2
7
5

81
61

2
2

123

169

4
1

XVI

INDEX TO SENATE MISCELLANEOUS DOCUMENTS.

Subject.

Stanford. Conoarrent resolution by Mr., directing the CommiBsioner
on Pablic Buildings and Grounds to investigate and report upon cer-
tain charges against Samuel Strong

Steamboat Inspection Service. Statement of facts relating to bill to
provide for the reorganization of the

Strong, Samuel. Concurrent resolution by Mr. Stanford directing the
Commissioner on Public Buildings and Grounds to investigate cer-
tain charges against

VoL

Tariff duties. Resolution by Mr. Cameron declaring that it is inexpe-
dient to-pass upon any measure looking to a reduction of

Teller. Amendment intended to bo proposed by Mr., to resolution by
Mr. Enstisof Februarys, 1886. (Part 2).

Territories. Resolution by Mr. Harrison to print extra copies of the
report of the Committee on, relative to the admission of Dakota. . .1 . .

Terntories. Resolution by Mr. Butler instructing the Committee on, to
inquire and report to the Senate under and by what authority a so-
called State legislature was organized in the Territory of Dakota

Texas. Letter from the Secretary of War in relation to claim of the
State of

Tobacco. Letter ftom the Commissioner of Internal Revenue in rela-
tion to bill (H« R. 8738) to amend certain sections of the Revised
Statutes which make a distinction in the mode of packing and sell-
ing cut

Turner, L. M. Concurrent resolution by Mr. Manderson authorizing

the printing of the report on Alaska, by

Report of

United States and Great Britain. Resolution by Mr. Frye in relation to
the appointment of a commission to consider the question of the fish-
ing rights of the Governments of the

Union Pacific Railroad Company. Resolution by Mr. Wilson, of Iowa,
directing the Secretary of the Interior to furnish the Senate a copy of
each report made by the Government directors of the

Union Pacific Railroad Company. Resolution by Mr. Plumb relative
to bill (S. 1609) authorizing the use of public moneys in building
branch lines of railroad for the benefit of the

Utah. Petition of Mrs. Angle F. Newman in relation to woman suf-
frage in ,

Vance. Resolution reported by Mr., authorizing the Secretary of the
Senate to pay R. A. Feunell for services as messenger

Vance. Resolution by Mr., directing the Committee on Civil Service
Reform to report Senate bill S^

Van Wyck. Resolution by Mr., directing the Committee on the Dis-
trict of Columbia to report a bill prohibiting the Washington and
Georgetown Gas-Light Companies from cousolidating

Van Wyck. Resolution by Mr., in relation to the Commissioners of
the District of Columbia

Van Wyck. Amendment intended tobeproposedby Mr., to resolutions
reported from the Judiciarv Committee relative to the refusal of the
Attorney -Gtoneral to furnish copies of certain papers

Van Wyck. Resolution by Mr., directing the Committee on Public
Buildings and Grounds to report a bill to regulate the price of gas
furnished by the Washington Gas-Li sht Company

Van Wyck. Resolution by Mr., directing the Committee on Public
Buildings and Grounds to confer with the Architect of the Capitol
relative to the erection of buildings on public grounds for the use of
employteof street railways

151

43
155

170
78

125
90

2
1

1
8

117

122

5
2

zym

INDEX TO SENATE MISCELLANEOUS DOCUMENTS.

Snbjeot.

WilBon, of Iowa. Resolution by Mr.^ directing the Secretary of the In-
terior to communicate to the Senate a copy of each report made by
the Qovemment directors of the Union Pacific Railroad Company. .

Wines, Fred. H., report of, on the defective classes, Tenth Census

Woman suffrage in Utah. Petition of Mrs. Angie F. Newman in rela-
tion to

Wool-Growers' Association. Resolutions adopted by the, at convention
held at Saint Louis, Mo., protesting against the repeal of the duty on

wool

Yellow fever. Memorial of committee of the American Medical As-
sociation in relation to the prevention of

8
172

12-2

129

1
13

§ 287.] ISTHMUS OP PANAMA. [CHAP. XII.

The relations of the United States to the Isthmns require '^ that the
passage across the Isthmus should be secure from danger of interrup-
tion. For this purpose, as well as for the ends of justice, exemplary
punishment should be promptly inflicted upon the transgressors, and
the responsibility of the Government of New Granada for the miscon-
duct of its people' should be recognized."

4 Mr. Maroy, Sec. of State, to Mr. Bowlin, May 3, 1856; June 4, 1856; Dec. 3,

1856. MSS. Inst., Colombia.
Lient. Miohler's report of July 14, 1857, of Bnrvey for an interooeanic caoal,
is given in Senate Ex. Doc. 9, 36th Cong., 2d seas.

'^The general policy of the United States concerning Central America
is familiar to you. We desire to see the isthmian routes opened and free
for the commerce and intercourse of the world, and we desire to see the
States of that region well governed and flourishing and free from the
control of all foreign powers. The position we have taken we shall ad-
here to, that this country will not consent to the resubjugation of those
States, or to the assumption and maintenance of any European atlthority
over them.

"The United States have acted with entire good faith in this whole
matter. They have done all they could do to prevent the departure
of illegal military expeditions with a view to establish themselves in
that region, and at this time measures are in progress to prevent the
organization and departure of another, which is said to be in prepara-
tion. Should the avowed intention of the French and British Govern-
ments be carried out and their forces be landed in Ficaragna, the
measure would be sure to excite a strong feeling in this country, and
would greatly embarrass the efforts of the Government to bring to a
satisfactory close these Central American difficulties which have been
so long pending.''

Mr. Cassy Sec. of State, to Mr. Mason, Nov. 25, 1858. MSS. Inst., France.
For a full exposition and criticism of Gen. Walker's expedition to the Isthmus

in 1858, see Mr. Cass, Sec. of State, to Mr. Molina, Nov. 26, 1860. MSS.

Notes, Cent. Am.
The report of Admiral Davis, July 11,1866, on interooeanic canal and railway

is in Senate Ex. Doc. No. 62, 39tb Cong., 1st sess.
As to Isthmus canal routes, rcc Mr. Fish, Sec. of State, to Mr. Washbnrne, Nov.

13, 1876. MSS. lust., F/ance.

The interest of tbe United States in the opening of a sbip-canal on the
Istbmas is peculiarly great. ** Our Pacific coast is so situate that, with
our railroad connections, time (in case of war) would always be allowed
to prepare for its defense. But with a canal through the Isthmus the
same advantage would be given to a hostile fleet which would be given
to friendly commerce; its line of operations and the line in which warlike
demonstrations could be made, could be enormously shortened. All the

§ 287.] ISTHMUS OF PANAMA. [CHAP. XII.

" Without urging further the grounds of ray opiuion, I repeat, In con-
clusion, that it is the right and the duty of the United States to assert
and maintaui such supervision and authority over anj' interoceanic
canal across the isthmus that connects NorUi and South America as
will protect our national interests. This I am quite sure will be found
not only compatible with, but promotive of, the widest and most per-
manent advantage to commerce and civilization.''

President Hayes, message of March 6, 1880.

*' The interest of the United States in a practical transit for ships
across the strip of laud separating the Atlantic from the Pacific has
been repeatedly manifested during the last half century. My immedi-
ate predecessor caused to be negotiated with Nicaragua a treaty for the
construction, by and at the sole cost of the United States, of a canal
through Nicaraguau territory, and laid it before the Senate. Pending
the action of that body thereon, I withdrevv the treaty for re-examina-
tion. Attentive consideration of its provisions leads me to withhold it
from resubmission to the Senate.

'' Maintaining, as I do, the tenets of a line of precedents from Wash-
ington's day, which proscribe entangling alliances with foreign states,
I do not favor a policy of acquisition of new and distant territory, or
the incorporation of remote interests with our own.

*' The laws of progress are vital and organic, and we must be con-
scious of that irresistible tide of commercial expansion which, as the
concomitant of our active civilization, day by day is being urged on-
ward by those increasing facilities of production, transportation, and
communication to which steam and electricity have given birth ; but
our duty in the present instructs us to address ourselves mainly to the
development of the vast resources of the great era committed to our
charge and to the cultivation of the arts of peace within our own bor-
ders, though jealously alertin preventing the American hemisphere from
being involved in the political problems and complications of distant
Grovemmeuts. Therefore I am unable to recommend propositions in-
volving paramount privileges of ownership or right outside of our own
territory, when coupled with absolute and unlimited engagements to
defend the territorial integrity of the state where such interests lie.
While the general project of connecting the two oceans by means of a
canal is to be encouraged, I am of opinion that any scheme to that end
to be considered with favor should be free from the features alluded to.

" The Tehuantepeo route is declared, by engineers of the highest re-
pute and by competent scientists, to afiford an entirely jn-acticable tran-
sit for vessels and cargoes, by means of a shiijrailway, from the Atlan-
tic to the Pacific. The obvious advantages of such a route, if feasibk
over others more remote from the axial lines of traflBc between Europe
and the Pacilic, and particularly between the valle.v of the Mississippi

§287.] ISTHMUS OF PANAMA. [CHAP. XII.

route open to all nations and subject to the ambitions and warlike
necessities of noiie.

" The drawings and report of a recent survey of the Nicaragua Canal
route, made by Chief Engineer Menocal, will be communicated for your
information.'^

PresideDt Cleveland, First Anuual Message, 1885. See supra^ ^ 7'2,

A report from Mr. Forsyth, Sec. of State, of Mar. 12, 1838, as to a sbip-canal
across the Istbmus, with the accompanying papers, will he found in Honse
£s. Doo. 228, 25th Cong., 2d sess.

President FiUmore's message and papers of Feb. 19, 1853, is in Senate Ex.
Doc. 44, 32d Cong. , 2d sess.

President FiUmore's message of Jnly 27,1854, respecting a right of way across
the Isthmns of Tehnan tepee, with the accompanying documents, is given in
Senate Ex. Doc. 97, 32d Cong., Ist and 2d sess. See also correspondence at-
tached to President Pierce's message at commencement of 34th Cong., Ist
sess., Dec. 3, 1855.

Mr. Rockwell's report on isthmns transit is contained in Honse Rep. 145, 30th
Cong., 2d sess.

The following list of Congressional documents is taken from the Department
Register :

Interoceanio canals : ^

Reports of Lnll and Collins Expedition of 1875, maps. Senate Ex. Doc. 75,

45th Cong., 3d sess.
Should be under control of the United States. Presideut's message, Mar. 8,

1880. Honse Ex. Doc. 47, 46th Cong., 2d sess.
Trade between Atlantic and Pacific coasts. Report of Treasury Department,

Mar. 15, 1880. House Ex. Doc. 61, 46th Cong., 2d sess.
Report of Lieut. T. A. M. Craven, dated Feb. 18, 1859, of a survey mode of

the Isthmus of Darien, Mar. 18, 1880. House Ex. Doc. 63, 46th Cong., 2d

sess.
Further letter from Treasury Department on the subject of shipping between

the Atlantic and Pacific coasts, May 15, 1880. House Ex. Doc. 86, 46th

Cong., 2d sess.
Resolution declaring that the consent of the United States is a necessary con-
dition precedent to the execution of any canal, Feb. 16, 1881. Senate Mis.

Doo. 42, 46th Cong., 3d sess.
Testimony taken before the select committee in regard to the selection of a

suitable route for a canal across the American Isthmns, Feb. 25, 1881.

Honse Mis. Doc. 16, 46th Cong., 3d sess.
Monroe doctrine. Report of Committee on Foreign Afi'airs, Fob. 14, 1881.

Honse Rep. 224, 46th Cong., 3d sess. Part 2, minority rep.. Mar. 4, 1881.
Favorable report on resolution that consent of the United States is a neces-
sary coudition precedent to execution of the canal project. May 16, 1881.

Senate Rep. 1, special sess.
Resolution, Apr. 27, 1881. Senate Mis. Doc. 18, special sess.
Senate reholntion as to action of the Government for protection of United

States interests in the projected canal, Oct. 13, 1881. Senate Mis. Doc. 4,

special sess.
The avowal of Colombia to terminate the treaty of 1846 with the United

States. President's message, Oct. 24, 1881. Senate Ex. Doc. 5, special

0V.O8*

CHAP. XII.] TRANSIT OVER BY TREATY WITH NEW GRANADA. [§ 288.

Steps taken by the UDited States to promote the constraction of a canal.
President's message, June 13, 1879. Hoase Ex. Doc. 10, 46t]i Cong., 1st

Resolution calling for correspondence and treaties projected since Februaryj
1869, Dec. 4, 1879. Senate Mis. Doc. 9, 46th Cong., 2d sess.

Relations between United States and Colombia, Central America, and Euro-
pean states with respect to. Treaties negotiated. Wyse-De Lesseps grant
from Colombia. President's message, Mar. 8, 1880. Senate Ex. Doc. 112,
46th Cong., 2d sess.

Report of the select committee on the interoceanic ship-canal, declaring that
the United States will assert and maintain their right to possess and control
any such canal, no matter what the nationality of its corporators or the
source or their capital may be, Mar. 3, 1881. House Rep. 390, 46th Cong.,

3d 8688.

Report of historical and technical information relating to the problem of in-
teroceanic communication by way of the American Isthmus, by Lieut. John
T. Sullivan, U. 8. N., with plates and maps. May 2, 1882. House Ex. Doc.
107, 47th Cong., 2d sess.

Clay ton-Bulwer treaty and the Monroe doctrine. Papers and correspondence
giving a historical review of the relations between Great Britain and the
United States with respect to Central America and the construction of com-
munications between the Atlantic and Pacific Oceans. President's message,
July 29, 1882. Senate Ex. Doc. 194, 47th Cong., 1st sess.

Reports of Rear- Admiral G. H. Cooper and Lieut. R. P. Rodgers, U. S. N.,
respecting progress of work on the ship-canal across the Isthmus of Panama,
with plates and maps. Mar. 12, 1884. Senate Ex. Doc. 123, 48th Cong., 1st
sess.

n. TRANSIT OVER, BY TREATY WITH NEJV ORANADA.

(1) Limitations of treaty.

. ' 5 288.

Article 35 of the treaty of 1846 with New Granada is as follows:
"The United States of America and the Republic of New Granada, desiring to make
as durable as possible the relations which are to be established between the two parties
by virtue of thia treaty, have declared solemnly, and do agree to, the following points:
" 1. For the better understanding of the preceding articles, it is and has been stip-
ulated between the high contracting parties, that the citizens, vessels, and merchan-
dise of the United States shall ei^oy in the ports of New Granada, including those of
the part of the Granadian territory generally denominated Isthmus of Panama, from
its southernmost extremity until the boundary of Costa Rica, all the exemptions,
privileges, and immunities concerning commerce and navigation, which are now or
may hereafter be enjoyed by Granadian citizens, their vessels, and merchandise ; and
that this equality of favors shall be made to extend to the passengers, correspondence,
sod merchandise of the United States, in their transit across the said territory, from
one sea to the other. The Government of New Granada guarantees to the Govern-
ment of the United States that the right of way or transit across the Isthmus of
Panama upon any modes of commimication that noVv exist, or that may be hereafter
constructed, shall be open and free to the Government and citizens of the United
States, and for the transportation of any articles of produce, manufactures, or merchan-
dise, oi lawful commerce, belonging to the citizens of the United States ; that no other
toUfl or charges shall be levied or collected upon the citizens of the United States, or
their said merchandise thus passing over any rond or canal that may be made by the

§ 289.] ISTHMUS OF PANAMA. [CHAP. XH.

Government of New Granada, or by the anthoritj of the same, than is, under like
circumstances, levied npon upon and collected from the Granadiau citizens ; that any
lawful produce, manufactures, or merchandise belonging to citizens of the United
States, thus passing from one sea to the other, in either direction, for the purpose of
exportation to any other foreign country, shall not be liable to any import duties
whatever ; or, having paid such duties, they shall bo entitled to drawback upon their
exportation ; nor shall the citizens of the United States be liable' to any duties, tolls,
or charges of any kind, to which native citizens are not subjected for thus passing the
said Isthmus. And, in order to secure to themselves the tranquil and constant enjoy-
ment of these advantages, and as an especial compensation for the said advantages,
and for the favors they have acquired by the 4th, 5th, and 6th articles of this treaty,
the United States guarantee, positively and efficaciously, to New Granada, by the
present stipulation, the perfect neutrality of the before-mentioned iRthmus, with the
view that the free transit from the one to the other sea may not be interrupted or
embarrassed in any future time while this treaty exists ; and in consequence, the
United States also guarantee, in the same manner, the rights of sovereignty and
property which New Granada has and possesses over the said territory.

'* 2. The present treaty shall remain in full force and vigor for the term of twenty
years from the day of the exchange of the ratifications ; and from the same day the
treaty that was concluded between the United States and Colombia, on the 13th of
October, 1824, shall cease to have effect, notwithstanding what was disposed in the
1st point of its 31st article.

" 3. Notwithstanding the foregoing, if neither party notifies to the other its inten-
tion of reforming any of, or all, the articles of this treaty twelve months before the
expiration of the twenty yean stipulated above, the said treaty shall continue bind-
ing on both parties beyond tbe said twenty years, until twelve months from the time
that one of the parties notifies its intention of proceeding to a reform.

'^ 4. I^any one or more of the citizens of either party shall iniringe any of the articles
of this treaty, such citizens sliall be held personally responsible for the same, and the
harmony and good correspondence between the nations shall not be interrupted there-
by ; each party engaging in no way to protect the ofiender, or sanction such viola-
tion.

'^ 5. If uufortunately any of the articles contained in thl« treaty should be violated or
infringed in any way whatever, it is expressly stipulated that neither of the two con-
tracting parties shall ordain or authorize any acts of reprisal^ nor shall declare war
against the other on complaints of injuries or damages, until the said party consid-
ering itself offended shall have laid before the other a statement of such injuries or
damagcH, verified by competent proofs, demanding justice and satisfaction, and the
same Hball have been denied, in violation of the laws and of international right.

''6. Any special or remarkable advantages that one or the other power may enjoy
from the foregoing stipulation, are and ought to be always understood in virtue and
as in compensation of the obligations they have just contracted, and which have been
specified in the first number of this article."

This treaty, now in force as to ISew Oranada under the recently as-
sumed title of Colombia, is discussed in connection with the Clayton-
Bnlwer treaty, supra, § 150/.

(2) CONTIXtJANCB OF.

§289.

As has been already seen this treaty remains in foi'ce, nor has it ever
been claimed that it comes within the purview of the Olayton-Bulwer
treaty so as to be in any way modified thereby.

Siiprn. ^ innf.

§ 292.] ISTHMUS OF PANAMA. [CHAP. XIL

vast amount of property are constantly passing — to the security and
protection of all which, and the continuance of the public advantages
involved, it 'is impossible for the Government of the United States to
be indifferent.

" I have deemed the danger of the recurrence of scenes of lawless
violence in this quarter so imminent as to make it my duty to station
a part of our naval force in the harbors of Panama and Aspinwall, in
order to protfect the persons and property of the citizens of the United
States in these ports, and to insure to them safe passage across the Isth-
mus. And it would, in my judgment, be unwise to withdraw the naval
force now in those ports, until, by the spontaneous action of the Repub-
lic of New Granada, or otherwise, some adequate arrangement shall
have been mo^e for the protection and security of a line of interoceauic
communication so important at this time, not to the United States
only, but to all other maritime states both of Europe and America."

President Pierce, Fourth Annnal Message,. 1656.

^^The Government is of the opinion that the position of the free ports
of Panama and Colon as mere stations on one of the world's most im-
portant highways should demand a simpler and less rigid enforcement
of customs rules against the vehicles of mere transient passage than
may be requisite to protect the fiscal interests at ports of entry. It is
deemed that the mutual concessions and guarantees under which the
transit was established entitle all those who honestly and pacifically
use it to exceptional facilities, which may not be needed, or be even
proper at other ports. It would be very much to be regretted if
a contrary course should prevail in conflict with the true interests of
Colombia herself, no less than of those who avail themselves of the
privileges incidental to the transit,'^

Mr. Frelinghaysen, Seo. of State, to Mr. Soraggs, Mar. 6, 1883. MSS.InBt., Co-
lombia.

IV. RELATIONS TO PARTICULAR COUNTRIES.

(t) Colombia.
§ 292.

The position of Colombia as to the treaty of 1846 has been already
discussed. [Supra, §§ 145, 150/, 297.^.)
The following may be considered in the same relation :

"You will remember that soon after the receipt of your note of Feb-
ruary 13 1 took occasion to have an interview with you, in which I inti-
mated that this Government could scarcely consider the newspaper
reports referred to as a sufficient basis for the demand of formal expla-
nations; that I was not then in possession of the information upon
which the definite wishes of this Government would finally take shape,
but that you might rest assured that no action had been taken or was

§ 292.] ISTHMUS OF PANAMA. [CHAP. XII.

time previously, that vessel was about to quit Las Bocas del Toro, hav-
ing coQipleted her errand.

" It is therefore very probable that, at the time you addressed me,
the Kearsarge, like the Adams, was already out of Colombian jurisdic-
tiou.

'^ The present occasion seems a fitting one for me to again assure
you, as I have done in my note of April 17, that the errand upon
which these national vessels of the United States visited the waters of
a state to which we are allied by ties of friendship and treaty guaran-
tees, neither in design nor in execution justified any feeling of alarm or
irritation on the part either of the government of the State of Panama
or of the population thereof. The repetition of this assurance is, I
feel, all that is now needful to add to the explanation of tbat note.

" It is therefore confidently hoped by the President that the actual
course so inconsiderately adopted by the executive of Panama, notwith-
standing the ample and frank explanations made to him by Mr. Dich-
man, on the occasion of the official visit of the latter to Panama, on the
5th of May last, and notwithstanding, moreover, an explicit promise
then made by President Cervera to Mr. Dichman, of which this Gov-
ernment was duly advised, that he would hold in abeyance any step
then contemplated toward the Adams and Kearsarge, until Mr. Dich-
mau should have made to the federal authorities at Bogota the commu-
nication with which he was charged, will either be promptly disavowed
or satisfactorily explained by the supreme Government of tbe United
States of Colombia. For in whatever way the act of President Cervera,
as communicated to the consuls of the United States at Colon (Aspin-
wall) and Panama on the 12th ultimo may be regarded, it cannot be
deemed as^otherwise than unprecedented, and, if not unfriendly in its
conception, as at least partaking. to an unfortunate extent of the ap-
pearance of unfriendliness.

*• It is the purpose of the Department to place before the Government
at Bogota the just grievance of this Government in the matter, not in
a spirit of querulous indignation at the treatment offered to its vessels
under an irresponsible impulse of uninstructed suspicion, but in confi-
dence that the apparent offense of wishing to exclude the public ves-
seLs of the United States, in time of peace, from any of the ports and
place{5 of the Colombian Union may be speedily relieved of it« unhappy
features, and that your note to me, to which I now reply, will be found
to truly represent, as I have assumed it to do, the spirit of sincere
friendship and thoughtful consideration which I cannot but believe the
Colombian Government feels toward that of the United States, and
which, I am not slow to affirm, is felt in like eminent degree by the
United States toward their sister Republic.

'' I am confident, Mr. Minister, that your enlightened judgment and
marked friendliness will lead you to concur with me in the need of a

ClIAP. XI1.J NICABAGUA. [§ 293.

better uuderstandiug of this strange and precipitate action of the ex-
ecutive of the State of Panama."

Mr. Evarts, Sec. of State, to Mr. Arosemoua, June 5, 1880. MSS. Notes, Co-
lombia; For. Bel., 1860.

As to debts of Colombia, as affected by subsequent revolutions see »upray $ 236.

As to the British treaty with Colombia of 187H, in respect to an Isthmus ship-
canui, see article by Engelhardt in 18 Revuo de droit int., lUC.

(2) Nicaragua.
§ 293.

The action of Niearagaa in relation to the ship-canals projected through
her territory, and to Great Britain, as exhibited in her negotiations
with that power, as to the Mosquito coast, is detailed in other sections.
(Supra, § 150/; infra, § 295.)

The following documents are to be considered in connection with
those given supra, \^lb^f:

*' You will represent to the Government of Nicaragua that this Gov-
ernment cannot undertake to guarantee the sovereignty of the line of
the (proposed) canal to her until the course which that work shall take,
with reference to the river San Juan, and its terminus on the Pacitic,
shall be ascertained, and until the difference between Nicaragua and
Costik Eica, concerning their boundary, shall be settled."

Mr. Webster, Sec. of State, to Mr. Kerr, May 4, 1851. MSS. Inst., Am. St.

*'If Nicaragua chooses to maintain the position you assume in your
note to mej that her citizens w^ho incorporated themselves with the com
munity at San Juan are still in friendly relations with her and entitled
to her protection, then she approves, by an implication, which she is
not at liberty to deny, of that i)olitical establishment planted on her
own soil, and becomes responsible for the mischiefs it has done to Amer-
ican citizens. It would be a strange inconsistency for Nicaragua to
regard the organization at San Juan as a hostile establishment on her
territory, and at the same time claim the right to clothe with her na-
tionality its members,

^^Assuming, as it is respectful to do, that you have duly appreciated
the consequences of the step you have taken, I infer that the Govern
meut of Nicaragua, by claiming the right of protection over the i>er-
6ons at San Juan, will not hesitate to acknowledge her responsibility
to other states for the conduct of the people which she has permitted
to occupy that part of her territory."

Mr. Marcy, See. of State, to Mr. Marcoleta, Aug. 2, 1854. MSS. Notes, Cent.

Am.
As to attack on Grey town (San Juan), see supra, $ 224a.
As to government of Greytowu, see eupray $ 224.

" You will impress upon Count Walewski that we want nothing of
Nicaragua which is not honorable to her, and which we have not a fair

§293.] 1S11IMI:S OF PANAMA. [CEULP. XIL

right to demand. We slialh under uo circumstances, abandon the de-
termination that the transit routes across the Isthmus shall be kept
open and safe for all commercial nations."

Mr. Cass, Sec. of State, to Mr. Mason, Apr. 12, 1859. MSS. Inst., France.

" In reply the undersigned feels called on simply to reiterate the doc-
trine which has been made public in the dispatch which he addressed
to General Lamar, on the 25th July, 1858, on the subject, and which
is embraced substantially in the following sentences :

** 'Nor do they [the United States] claim to interfere with the local
Governments in the determination of the questions connected with the
opening of the routes and with the persons with whom contracts may
be made for that purpose. What they do desire and mean to accom-
plish is that the great interests involved in this subject should not be
sacrificed to any unworthy motive, but should be guarded from abuse?
and that, when fair contracts are fairly entered into with American
citizens, they should not be wantonly violated.' And again : ' There
are several American citizens who, with different interests, claim to
have formed engagements with the proper aathorities of Nicaragua for
opening and using the transit routes, with various stipulations defining
their privileges and duties, and some of these contracts have already
been in operation. This Government has neither the authority nor tlie
disposition to determine the conflicting interests of these claimants.
But what it has the right to do, and what it is disposed to do, is to re-
quire that the Government of Nicaragua should act in good faith
towards them, and should not arbitrarily and wrongfully divest them
t)f rights justly acquired and solemnly guaranteed.'

'' Where one of the parties to a contract proceeds by an arbitrary act
to annul it, on the ground that the other party has failed to comply with
its conditions, and by a process which precludes any investigation, the
j>lainest principles of justice are violated. What the United States re-
(j aire is not that their citizens should be maintained in rights they have
forfeited, but that they should not be deprived of rights derived from
the Government of Nicaragua without a fair examination by an impar-
tial tribunal."

Mr. Cass, Sec. of State, to Mr. Jerez, May 5, 1-SotK MSS. Not<?s, Ceut. Am.

•* Everybody wishes the Spanish -American states well, and yet every-
body loses patience with them for not being wiser, more constant, and
more stable. Such, I imagine, is the temper in which every foreign
state finds itself when it proposes to consider its relations to those Ee-
publics, and especially the Eepublics of Central America. I know, at
least, that this has always been the temper of our best statesmen in re-
gard to Nicaragua. Union, or, at least, practical alliance with Nica-
ragua has always been felt by them as a necessity for the United States,
and yet no one ever deems it prudent to counsel the establishment of
such intimate relations. Possessing one of the continental transits most

CHAP. XII.] NICARAGUA. [§ 293.

interestiDg to the United States, ITicaragua is at once jealous of foreign
iDtervention to render it available, and incompetent to open and main-
tain it herself. But Nicaragua, like the other Spanish- American states,
has far better excuses for its shortcomings than it generally has credit
for. That state became precociously mature, and it adopted our model
of government with little of that preliminary popular education and dis-
cipline which seem necessary to enable any people to administer, main-
tain, and preserve free republican institutions. The policy pursued by
foreign nations towards ^Nicaragua has not been liberal or generous.
Great Britain, in her wars with Spain, early secured a position in the
state very detrimental to its independence, and used it to maintain
the Indians in a condition of defiance agjiinst the Creole population,
while it did nothing, at least nothing effectually, to civilize the tribes
whom it bad taken under its protectiou. Unwilling to lend the aid nec-
essary to tbe improvement of the country, Great Britain used its pro-
tectorate there to counteract domestic efibrts and intervention from this
Government to make that improvement wbich was necessary for the
interei>t of Nicaragua herself, and hardly less necessary for all the west-
ern nations. Our own Government has been scarcely less capricious,
atone time seeming to court the most intimate alliance, at another
treating the new Republic with neglect and indifference, and at another
indirectly, if not directly, consenting to the conquest a!id desolation of
the country by our own citizens for the purpose of re establishing the
institution of slavery, which it had wisely rejected. It may be doubtful
whether Nicaragua has not until this day been a loser instead of a gainer
by her propinquity to, and intercourse with, the United States.

^* Happily this condition of things has ceased at last Great Britain
has discovered that her Mosquito protectorate was as useless to herself
asit was injurious to Nicaragua, and has abandoned it. The United
States no longer think that they want slavery re-established in that
state, nor do they desire anything at the hands of its Government but
that it may so conduct its affairs as to permit and favor the opening of
an interoceanic navigation, which shall be profitable to Nicaragua and
dually open to the Uaited States and to all other maritime nations.

"You go to Nicaragua in this fortunate conjuncture of circumstances.
There is yet another comfort attending your mission. Claims of Amer-
ican citizens upon the Government of Nicaragua have long been a
source of diplomatic irritation. A convention which provides for the
settlement of these claims has been already negotiated. It wants only
the consent of the Senate of the ifnited States to an amendment pro-
posed by Nicaragua, which, it is believed, would not materially change
the effect of the convention, and such consent may, therefore, be ex-
pected to *l>o given at the approaching special session of Congress.

'•Your in»tructioud, therefore, will be few and very simple. Assure
tbe Republic of Nicaragua that the President will deal with thai Gov-
eminent just 13% fairly, and in the most friendly spirit; that he desuv^

S. Mis. UVJ—vuL, III 2 n

§ 293.] ISTHMUS OF PANAMA. [CHAP. XIL

only its welfare and i)rosperity. Cultivate friendly dispositions there
toward the United States. See that no partiality arises in behalf of
any other foreign state to our prejudice, and favor, in every way you
can, the improvement of the transit route, seeking only such facilities
for our commerce. as Nicaragua can afford profitably to herself, and
yield, at the same time, to other commercial nations."

Mr. Seward, Se<f. of State, to Mr. Dickinson, June 5, 1861. MSS. Inst., Am,
States ; Dip. Corn, 1861.

'*This Government does not mean to insist that citizens of the United
States have an absolute right to display the national flag over their
buildings and ships in Nicaragua, and on steamers navigating merely
inland waters of that country. But the undersigned is* now informed
that the American Transit Company has heretofore, with the full consent
and approval of the Government of Nicaragua, habitually kept the fla.g
of the United States flying over such buildings and vessels as the build-
ings and waters aforenamed. It seems to the underbigned that if for
any reason the Government of Nicaragua had thought it desirable that
this indulgence should cease, comity would require in that case that
this should have been made known to the Government of the United
States or at least its representative residing in Nicaragua, to the end
that the now oflfending flag might be voluntarily withdrawn.

"The forcible and violent removal of the flag, at so many points,
without any previous notice, seems to imply a readiness to offend the
just sensibilities of this country, and indeed the allegation is distinctly
made that the flag was removed in each case with marked indignity and
in a specially insulting manner.'^

Mr. Seward, Sec. of State, to Mr. Molina, Sept. 28, 1863. MSS. Notes, Cent. Am.
As to impediments cast by the Government of Nicaragua in way of roads acrofis

Isthmus, see Mr. Cass, Sec. of State, to Mr. Dimitry, Ang. 31, 1859. MSS.

Inst., Am* States.
For a full history of the negotiations between the United States and Great

Britain in respect to Nicaragua and the construction of a ship-canal through

the Isthmus, see Mr. Fish, Sec. of State, to Mr. Schenck, Apr. 26, 1873.

MSS. Inst., Gr. Brit., qnoted »if|>ra, } 150/.
As to negotiations for transit with Nicaragua in 1884, see ^fr. Frelinghuysen,

Sec. of State, to Mr. Phelps, Apr. 2;^, 1684. MSS. Inst., Peru.
For a history of action of Government of the United States on the subject of a

ship canal through Nicaragua, see Mr. Frelinghuysen to Mr. Hall, July 19}

1884, Feb. 12, 1884, Apr. 3, 1884, Feb. 10, 1885. MSS, Inst., Cent. Am.

In relation to Nicaragua the following list of Congressional documents, taken from
the Department register, may bo referred t^ :

Claims of United States citizens against. President's message. Dee. 9, 1878.
Senate Ex. Doc. 3, 45th Cong., 3d eess.

Resolution appointing committee to examine claims, Feb. 4, 1679. Senate Rep.
7ll,4r)th Cong.,:M kcss.

Claims of Wtn^lsoy Tell«?r and Eliza Livingston. Report advising the negotia-
tion of a treaty for settlement of similar claims, Feb. 6, 1679. House R<'p.
96, 4r)th Cong., 3d setj!*.

18 '

CHAP. XII.] COSTA RICA: MOSQUITO COUNTRY. [§§ 294, 295.

Report in favor of tbo appointment of a select committee to examine into the
claims and take evidence, Jan. 13, 1880. House Rep. 86, 46th Cong., 2d
eess.

Besolation providing for a committee of five to examine claims, June 30, 1879.
House Mis. Doc. *20, 46th Cong., Ist sess.

Keport submitting a bill to carry out any claims convention with that Govern-
ment that may be concluded, Apr. 2d, 1880. Senate Rep. 532, 46th Cong.,
2d sess. ^

Report in favor of anthorizing the President to negotiate a treaty for the set-
tlement of claims, Mar. «3, 1881. Hoase Rep. 396, 46th Cong., 3d sess.

Report calling on the President to arrange a convention for the oonsideratioii
of claims, Feb. 7, 1882. House Rep. 255, 47th Cong., 1st sess.

Nicaragua Canal route, report in favor of. President's message, Apr. 18, 1879.
Senate Ex. Doc. 15, 46th Cong., 1st sess.

ka to the Maritime Canal Company of Nicaragna, the following documents may be

noticed:

Amendments to proposed charter, Feb. 12, 1881. House Rop. 211, 46th Cong., 3d

sess.
Favorable report, Apr. 4, 1882. Senate Rep. 366, 47th Cong., Ist boss.
Favorable report, with map. July 21, 1682, House Rep. 1698, 47th Cong., Ist

eess. ; Aug. 7, 1883, part 2, minority report.
Favorable report, Jan. 31, 1883. Senate Rep, 952, 47th Cong. , 2d sees.

(3) Costa Rica.
§ 204,

The relations of Costa Rica to the United States are elsewhere dis-
tinctively noticed, supra, § J40.

As to contested boundary between Costa Rica and Nicaragna, and as to their
contention as to canal site, see Mr. Webster, Sec. of State, to Mr.^Walsh,
Apr. 29, 1852, Apr. 30, 1652. MSS. Inst., Am. States. See also Mr. Everett,
Sec. of State, to Mr. Kerr, Jan. 5, 1853, ibid,, for a fnll discussion of the
same issues.

(4) TiiK Mosquito Country and Belize.

S 295.

Theiin]>ortanceof thequestion of tliepresent relations of Great Britain
and the Mosqnito country' has been already pointed out. (Supra^ § 150/.)
It remains now to observe tliat the United States has at all periods, after
tbe question was agitated, denied the title of Great Britain to a ]>rotec-
torshipof the Mosquito coast. This has been not only resolutely, but
^ith much elaborateness of argument, in instructions by Mr. Clayton,
^^ocretary of State, to Mr. Squier (Cent. Am.), May 1, 1849 ; to IMr. Ban-
croft (Great Britain), May 2, 1849, and to Mr. Lawrence (Gr. Brit.), Octo-
^<^r20, 1849, December 10, 1849 ; by Mr. Marcy, Secretary of State, to
Mr. Buchanan, July 2, 1853, and to Mr. Dallas, May 24, July 26, 185G; by
Mr. Webster, Secretary of State, to Mr. Graham, Secretary of the Navy,
March 17, 1852, and by Mr. Everett in a report to the President of Feb-
nmry IG, 1853. Other documents slvowiug the baselessness of this

§ 295.] ISTHMUS OF PANABiA. [CHAP. XII.

claim are noticed, supra^ § 150/, in the discussion of the Clay tou-Bulwer
treaty.

That Gicat Britain has no basis for her claim to the protectorate of the Mos-
qnito country see Mr. Clayton, Sec. of State, to Mr. Bancroft, May 2, 1849,
MSS. Inst., Gr. Brit. ; Mr. Clayton to Mr. Lawrence, Oct. 20, 1849 ; same to
same, Deo. 10, 1849; Mr. Marcy to Mr. Buchanan, July 2, 18o3 ; Air. Marcy to
Mr. Dallas, May 24, 185C, July 26, ia56.

As to Belize and Ruatan, see Mr. Marcy to Mr. Buchanan, June 12, 1854, Aug. 6,
1855; Mr. Marcy to Air. Dallas, Mar. W, 1855, April 7. 1850, May 24, 1856,
July 26, 1856. See also Senate Ex. Doc. 27, 32d Con;;., 2d sess. ; report of
Mr. Kverett to the President, Feb. 10^1853, MSS. Report Book; Bancroft
Davis, Notes on Treaties, 104.

For an elaborate discussion of the whole question see Mr. Clayton, Sec. of State,
to Mr. Squier, May 1, 18*19. MSS. lust.. Am. States.

That the Mosquito Indians do not possess the rights of sovereignty and cannot
give title, see Mr. Webster, Sec. of State, to Mr. Graham, Mar. 17, 1852; Mr.
Marcy, Sec. of State, to Mr. IngorsoU, June 9, li<5;^, MSS. lust., Gr. Brit.; to
Mr. Buchanan, Aug. 6, 1855 ; to Mr. Dallas, July 26, 1856.

That the British protect'^rate over the Mostiuito territory is in violation of the
Clayton-Bulwor treaty, see Mr. Marcy, Sec. of State, to Mr. Buchanan, July
2, 1853. MSS. Inst., Gr. Brit.

" Under the assumed title of protector of the Kingdom of the Mos-
qaitos, a miserable, degraded, and insignificant tribe of Indians, she
doubtless intends to acquire an absolute dominion over this vast extent
of sea coast. With what little reason she advances this pretension ap-
pears from the convention between Great Britain and Spain, signed at
London on the 14th day of July, 1786. By its first article, ' His Britan-
nic Majesty's subjects, and the other colonists who have hitherto en-
joyed the protection of England, shall evacuate the country of the
Mosquitos, as well as the continent in general and the islands adjacent,
without exception, situated beyond the line hereafter described as what
ought to be the frontier of the extent of the territory granted by His
(Jatholic Majesty to the English for the uses specified in the third article
of the present convention, and in addition to the country already
granted to them in virtue of the stipulations agreed upon by the com-
missioners of the two Crowns in 1783.'^

Mr. Buchanan, See. of State, to Mr. Ilise, June 3, 1848. MSS. Inst., Am. Statcsv
1 Curtis' Buchanan, 02.').

"This application has led to an inquiry by the Department into the
claim set up by the British Government, nominally in behalf of His
Mosquito Majesty, and the conchision arrived at is that it hjis no reason-
able foundation. Umler this conviction, the President Ciin never uUuw
such pretension to stand in the way of any riglits or interests whicli thin
Government or citizens of the United States now possess, or mny here-
after acquire, having relation to the Mosquito shore, ami especinl^y t«>
the port and river of San Juan do Nicanigua. He is decided in the
opinion that that part of the American continent having been discovered
by Spain and occapio<l by her so far as slie dt'caied compatible with hrr

:^0

§295.] ISTHMUS of Panama. [chap, xil

use for themselves the country in their possession, but not the right of
sovereignty or eminent domain over it."

Mr. Marcy, Sec, of State, to Mr..lDger6o]1, JiineD, 1853. MSS. lust., Gr. Brit.

" The British Government denies that it has yielded anything by that
(1850) treaty in regard to its protectorate of the Mosquito Indians. It,
however, professes a willingness, as I understand, to withdraw that pro-
tectorate if the Government of Nicaragua can be induced to treat the
Mosquitos fairl^^and allow them some compensation for the territory now
claimed by them for the relinquishment of their occupanc3", and for the
peaceable surrender of it to Nicaragua. Admitting these Indians to be
what the United States and Nicaragua regard them, a savage tribe,
having only possessory rights to the country they occupy, and not the
sovereignty of it, they cannot fairly be required to yield up their act-
ual possessions without some compensation. Might not this most
troublesome element in this Central American question be removed by
Nicaragua in a way just in itself, and entirely compatible with her na-
tional honor ! Let her arrange this matter as we arrange those of the
same character with the Indian tribes inhabiting portions of our own
territory.''

Mr. Marcy, Sec. of State, to Mr. Borland, June 17, 1853. MSS. Inst., Am. St.

" The United States Government, in its correspondence with the Brit*
ish Government, has denied the pretensions set up for the people at
San Juan de Nicaragua (or Greytown) to any political organization
or power derived in any way or form from the Mosquitos."

Ihid,

"The protectorate which Great Britain has assumed over the Mosquito
Indians is a most palpable infringement of her treaties with Spain, to
which reference has just been made, and the authority she is there ex-
ercising under pretense of this protectorate is in derogi^^ion of the sov-
ereign rights of several of the Central American States and contrary to
the manifest spirit and intention of the treaty of April 19, 1850, with
the United States.

"Though ostensibly the direct object of the Clayton and Bulwer treaty
was to guarantee the free and common use of the contemplated ship-
canal across the Isthmus of Darien, and to secure such use to all nations
by mutual treaty stipulations to that effect, there were other and highly
important objects sought to be accomplished by the convention. The
stipulation regarded most of all, by the United States, is that for dis-
continuiug the use of her assumed protectorate of the Mosquito Indiana,
and with it the removal of all pretext whatever for interfering with the
territorial arrangements which the Ceutral American States niDV wish
to make among themselves. It was the intention, as it is obviously the
import, of the treaty of April 19, 1850, to place Great Britain uiUler an
obligation to cease her interpositions in the afiairs of Central America

§ 295.J ISTHMUS OF PANAMA. [CHAP. XII.

sovereigu or political authority there, and do capacity to transfer to in-
dividuals an absolute and permanent title to the lands in their posses-
sion, and that the right of eminent domain — which only can be the
source of such title — is in certain of the Central American States.

''If the emigrants (persons purposing to settle in the Mosquito King-
dom) should be formed into companies, commanded by officers, and
furnished with arms, such organization would assume the character of
a military expedition, and being hardly consistent with professions of
peaceful objects, would devolve upon this Government the duty of
inquiring whether it be not a violation of our neutrality act."

Mr. Marcy, Sec. of State, to Mr. Kinney, Feb. 4, 1855. MSS. Dom. Let.

Great Britain had not, at the time of the convention of April 19, 1850,
*^ any rightful possessions in Central America, save only the usufructuary
settlement at the Belize, If that really be in Central America ; and at
the same time, if she had any, she was bound by the exi)ress tenor and
true construction of the convention, to evacuate the same, so as thus
to stand on precisely the same footing in that respect as the United
States."

Mr. Marcy, Sec. of State, to Mr. Dallas, July 26, 1^56. MSS. Inst., Gr. Brit.
Supraf i 150/. [The whole of this instruction is of great importance, and
should be carefully studied in this connection.]

The "statement for the Earl of Clarendon," by Mr. Buchanan, United
States minister in London, dated January 6, 1854, given in the Brit, and
For. St. Pap. for 1855-'5C, vol. 46, contains the following passages:

"It would be a vain labor to trace the history of the connection of
Great Britain with the Mosquito shore and other portions of Central
America previous to her treaties with Spain of 1783 and 1786. This
connection doubtless originated from her desire to break down the
monopoly of .trade which Spain so jealously enforced with her American
colonies, and to introduce into them British manufactures. The at-
tempts of Great Britain to accomplish this object were pertinaciously re-
sisted by Spain, and became the source of continual difficulties between
the two nations. After a long period of strife these were happily ter-
minated by the treaties of 1783 and 1786, in as clear and explicit lan-
guage as ever was employed on any similar occasion ; and the history
of the time rendered the meaning of this language, if possible, still more
clear and explicit.

"Article VI of the treaty of peace of 3d September, 1783, was very
distasteful to the King and Cabinet of Great Britain. This abundantly
appears from Lord John Kussell's 'Memorials and Correspondence of
Cliarles James Fox.' The Bridsh Government, failing in their eft'orts
to have this article deferred for six months, finally yielded a most reluct-
iint consent to its insertion in the treaty.

"Why this reluctant consent? Because Article YI stipulates that,
Avith the exception of the territory between the river Wallis or Belize
iind the Kio Hondo, within which permission was granted to British
subjects to cut log-wood, ' all the English who may be dispersed i\\ any
other parts, whetlier on the Spanish continent ("continente Espiionol'-),
or in any of the islands whatsoever dependent on the aforesaid Spanish
'•'^?:*!»MT^ «nd for whatever reason it might be, without exception, shall

CHAP. XII.] MOSQUITO COUNTRY AND BELIZE. [§ 295.

retire withlu the district above described in tbe space of eighteen
months, to be computed from the exchange of ratifications.'

''And tbe treat3' further expressly provides, that the permission
granted to cnt logwood 'shall not be considered as derogating, in any
vise, from his [Catholic Majesty's] rights of sovereignty' over this
lo^'wood distinct ; and it stipuhites, moreover, *that if any fortifications
febould have been actually heretofore erected within the limits marked
out, Bis Britannic Majesty shall cause them all to be demolished, and
he will order his subjects not to build any new ones'

**But, notwithstanding these provisions, in the opinion of ]\rr. Fox, it
was still in the power of the British Govenmient * to put our [their]
owiiinterpretation npon the words **continente Espagnol," and to derer-
mine, upon prudential considerations, whether the Mosquito shore comes
niider that description or not.'

"Hence the necessity for new negotiations which should determine,
pn cisely and expressly, the territory embraced by the treaty of 1783.
These produced the convention of the 14th of Ju\>', 1780; and its very
first article removed every doubt on the subject. This declared that
^ Bis Britannic Majesty's subjects, and the other colonists who have
hitherto enjoyed the protection of England, shall evacuate the country
of tbe Mosquitos, as well as the continent in general, and the islands
adjacent, without exception,' situated beyond the new limits prescribed
bv tbe convention within which British subjects were to be permitted
to cut, not only logwood, but mahogany and all other wood ; and even
this district is ' indisputably acknowledged to belong of right to the
Crown of Spain.'

"Tbas what was meant by the 'continente Espagnol ' in the treaty
of 1783, is defined, beyond all doubt, by the convention of 1786; and
tbe sovereignty of the Spanish King over the Mosquito shore, as well as
over every other portion of the Spanish continent and the islands adja-
cent, is expressly recognized.

^4t was just that Great Britain should interfere to protect the Mos-
(jnito Indians against the punishment to which they had exposed them-
selves as her allies from their legitimate and acknowledged sovereign.
Article XIV of the convention, therefore, provides that His Catholic
Majesty, prompted solely by motives of humanity, promises to the
I^ing of England that he will not exercise any act of severity against
tbe Mosquitos inhabiting in part the countries which are to be evacu-
ated by virtue of the present convention, on account of the connections
vbicb may have subsisted .between the said Indians and the English ;
and His Britannic Majesty, on his part, will strictly prohibit all his
sabjectsfrom furnishing arms or warlike stores to the Indians in gen-
eral situated u[>on the frontiers of the Spanish possessions.'

** British honor required that these treaties with Spain should be
faitWully observed; and from the contem])oraneou8 history no doubt
exists but that tbis was done; that the orders requirpd by Article XV
of tbe convention were issued by the British Government, and that
Iboy were strictly carried into execution.

** Ju this connection a reference to the significant proceedings in the
Bouse of Lords on the 2Gth of March, 1787, ought not to be omitted.
Ou tbat day a motion was made by Lord llawdou that the terms of the
convention "of July 14, 17SG, do not meet the favorable oi)inion of this
House.' The motion was discussed at considerable length, and with
great ability. The task of defending the ministry n|)on this o^casiou
was undertaken by Lord Chancellor Thurlow, and was most triuni-

§ 295.] ISTHMUS* OF PANAMA. [CHAP. XII.

phantly performed. He abundantly justified the ministry for having
surrendered the Mosquito shore to Spain ; and proved that ' the Mos-
quitos were not our allies ; they were not a people we were bound by
treaty to protect.' His lordship repelled the argument that the settle-
ment was a regular and legal settlement, with some sort of indigna-
tion ; and so far from agreeing, as had been contended, that we had re-
mained uniformly in the quiet and unquestionable possession of our
claim to the territory he called upon the noble Viscount Stormout to
declare, as a man of honor, whether he did not know the contrary.

''Lord Rawdon's motion to condemu the convention was rejected by
a vote of 53 to 17.

"It is worthy of special remark that all sides of the House, whether
approving or disapproving the convention, proceeded upon the express
admission that it required Great Britain, emf)]oying its own language,
' to evacuate the country of the Mosquitos.' On this question the House
of Lords was unanimous.

''At what period, then, did Great Britain renew her claims to the
country of the Mosquitos, as well as the continent in general, and the
islands adjacent, without exception ! It certainly was not in 1801, when^
under the Treaty of Amiens, she acquired the island of Trinidad from
Spain, without any mention whatever of further acquisitions in Amer-
ica. It certainly was not in 1809, when she entered into a treaty of al-
liance, ofl'eusive and defensive, with Spain, to resist the Emperor Na-
poleon in his attempt to conquer the Spanish monarchy. It certainly
was not in 1814, when the commercial treaties, which had previously
existed between the two powers, including, it is presumed, those of
1783 and 1786, were revived. On all these occasions there was no men-
tion whatever of any claims of Great Britain to the Mosqnito protector-
ate, or to any of the Spanish- American territories which she had aban-
doned. It was not in 1817 and 1819, when acts of the British Parlia-
ment (67 and 59 George III), distinctly acknowledged that the British
settlement at Belize was *not within the territory and dominion of His
Majesty,' but was merely *a settlement for certain j)uvposes, in the
possession and under the protection of His Majesty;' thus evincing a
determined i)urpose to obserte with the most scrupulous good faith
the treaties of 1783 and 178C with Spain.

"In the very sensible book of Captain Bonnycastle, of the corps of
British Boyal Engineers, on Spanish-America, published at Loudon,
in 1818, he gives no intimation whatever that Great Britain hnd re-
vived her claim to the Mosquito protectorate. On the contrary, he
describes the Mosquito shore as 'a tract of country which lie^ along
part of the northern and eastern shore of Honduras,' which had *beeu
claimed by the British.' He adds, * the English held this country lor •
eighty years, and abandoned it in 1787 and 1788.'

"Thus matters continued until a considerable period after 1831, in
which year the Spanish provinces composing the captain-generalship
of Guatemala asserted and maintained their independence of Spain. It
would be a work of supererogation to attempt to prove, at this i»eriod
of the world's history, that these provinces having, by a successful
revolution, become independent states, succeeded within their respect-
ive limits to all the territorial rights of Spain. This will surely not
be denied by the British Government, which took so noble and promi-
nent a part in securing the independence of all the Spanish-American
l)rovinces.

"Indeed, Great Britain has recorded her adhesion to this principle
of international law in her treaty of December 20, 18-0, with ^lexico,

2«

CHAP. Xn.] . MOSQUITO COUNTRY AND BELIZE. [§ 295^,

then recently a revolted Spanish coloDy. By tbis treaty, so far from
claiming any right beyond the usufruct which had been conceded to
her under the convention with Spain in 1786, she recognizes its con-
tinued existence and binding effect, as between herself and Mexico, by
obtaining and accepting from the Government of the latter a stipula-
tion that British subjects shall not be 'disturbed or molested in the
peaceable exercise of whatever rights, privileges, and immunities they
have at any time enjoyed within the limits described and laid <lowu' by
that convention. Whether the former Spanish sovereignty over Belize,
subject to the British usufruct, reverted of right to Mexico or to Gua-
temala, may be seriously questioned ; but, in either case, this recognition
by Great Britain is equally conchisive.

"And here it may be a])proi)riate to observe that Great Britain still
continues in possession, not only of the district between the liio Hondo
and the Sibun, within which the King of Spain had granted her a
liceuse to cut mahogany and other woods, but the British settlers have
extended this possession south to the river Sarstoon, one degree and a
half of latitude beyond 'the limits described and laid down' by this
convention. It is presumed that the encroachments of these settlers
south of the Sibun have been made without the authority or sanction
of the British Crown, and that no difficulty will exist in their removal.
"Yet in view of all these antecedents the island of Ruatan, belong-
ing to the State of Honduras, and within sight of its shores, was cap-
tured in 1841 by Colonel McDonald, then Her Britannic Majesty's super-
intendent at Belize, and the flag of Honduras was hauled down and
that of Great Britain was hoisted in its place. This small State, inca-
pable of maliing any effectual resistance, was compelled to submit, and
the island has ever since been under British control. What makes this
event more remarkable is that it is believed a similar act of violence
had been committed on Euatan by the superintendent of Belize in 1835;
bat on complaint by the Federal Government of the Central American
States, then still in existence, the act was formally disavowed by the
British Government, and the island was restored to the authorities of
the Republic.

" No question can exist but that Ruatan was one of the ' islands ad-
jacent ' to the American continent which had been restored by Great
Britain to Spain under the treaties of 1783 and 1786. Indeed, the most
approved British gazetteers and geographers up till the present date
have borne testimony to this fact, apparently without information from
that hitherto but little known portion of the world, that the island had
again been seized by Her Majesty's superintendent at Belize, aud was
now a iK)8SCSsion claimed by Great Britain.

" When Great Britain determined to resume her dominion over the
Mosquito shore, in the name of a protectorate, is not known with any
degree of certsiinty in the United States. The first information on the
subject in the Department of State, at Washington, was contained in
a dispatch of the 20th January, 1842, from William S. Muq>hy, esq.,
special agent of the American Government to Guatemala, in which he
states that in a conversation with Colonel McDonald at Belize the latter
had informed him that he had discovered and sent documents to Eng-
land, which caused the British Government to revive their claim to the
Mosquito territory.

"According to Bonnycastle the Mosquito shore Mies along i^irt of
the northern and eastern shore of Honduras ; ' and by the niaj) which
accompanies bis work, extends no further south than the mouth of the

^ 295.] ISTHMUS OP PANAMA. . [CHAP. XIL

liver Segovia, in about 12^ north latitade, Tbis respectable aatbor
certainly' never could have imagined that it extended south to San
Juan de Nicaragua, because he describes this as the principal port of
Nicaragua on the Caribbean Sea, says there are ' three portages' between
the lake and the mouth of the river, and * these carrying places are de-
ftMided, and at one of them is the fort San Juan, called also the Castle
of Xnestra Seiiora, on a rock, and verj" strong ; it has 36 guns mounted,
with a small battery, whose platform is level with the water; and the
whole is inclosed on the land side by a ditch and rampart. Its garrison
is generally kept up at 100 infantry, IG artillerymen, with about CO of
the militia, and is provided with bateaux, which row guard every night
up and down the stream.' Thus, it appears, that the Spaniards were
jujstly sensible of the importance of defending this outlet from the lake
of Nicaragua to the ocean; because, as Captain Bonnycastle- observes.
* this port (San Juan) is looked upon as the key of the Americas, ana
with the possession of it and Kealejo, on the other side of the lake, the
Spanish colonies might be paralyzed by the enemy then being master
of the ports of both oceans.' He might have added that nearly 60
years ago, on the 2Gth February, 1790, the port of San Juan de Nica-
ragua was established as a port of entry of the second class by the
King of Spain. Captain Bonnycastle, as well a^ the Spaniards, would
have been greatly surprised had they been informed that this port was
a ])art of the dominions of His Majesty the King of the Mosquitos, and
that the cities and cultivated territories of Nicaragua surrounding the
lakes Nicaragua and Managua had no outlet to the Caribbean Sea ex-
cept by hi:* gracious permission.

'* It was, therefore, with profound surprise and regret [thatj the Gov-
ernment and people of the United States learned that a British force,
on the 1st of January, 1848, had expelled the State of Nicaragua fi-om
San Juan, had hauled down the Nicaraguan flag, and had raised the
Mosquito flag in its place. The ancient name of the town, San Juan de
Nicaragua, which had identified it in all former times as belonging to
Nicaragua, was on this occasion changed, and thereafter it became
Oreytown.

'* These proceedings gave birth to serious apprehensions throughout
the United States that Great Britain intended to monopolize for herself
the control over the different routes between the Atlantic and Pacific,
which, since the acquisition of California, had become of vital impor-
tance to the United States. Under this impression, it was impossible
that the American Government could any longer remain silent and ac-
quiescing spectators of what was passing in Central America.

" Mr. Monroe, one of our wisest and most discreet Presidents, an-
nounced in a public message to Congress, in December, 1823, that *the
American continents, by the free and independent condition which they
have assumed and maintained, are henceforth not to be considered sub-
jects for future colonization by any European powers.' This declara-
tion has since been known throughout the world as the ' Monroe doc-
trine,'and has received the public and oflQcial sanction of subsequent
Presidents, ns well as of a large majority of the American people,
Whilst this doctrine will be maintained whenever, in the opinion of
Congress, the peace and safety of the United States shall render this
necessary, yet to have acted upon it in Central America mi<i:ht have
br()Ujj:ht us into collision with Great Britain, an event always to be
deprccat^'d, and, if j)()ssible, avoided. We can do each other the most
good, and the uiost harm, of any two nations in the world, and, there-

§295.] ISTHMUS OP PANAMA. [CllAP. XIL

" The moment Great Britain shall withdraw from Blucfields, where
she now excises exclusive dominion ov^er the Mosquito shore, the for-
mer relations of the Mosquitos to Nicaragua and Honduras as the suc-
cessors of Spain, will naturally be restored. When this event shall
occur, it is to be hoped that these states in their conduct towards the
Mosquitos and the other Indian tribes within their territories, will fol-
low the example of Great Britain and the United States. Whilst neither
of these has ever acknowledged, or permitted any other nation to ac-
knowledge, any Indian tribe within their limits as an independent
people, they have both recognized the qualified right of such tribes to
occupy the soil, and as the advance of the white settlements rendered
this necessary, have acquired their title by fair purchase.

»* Certainly it cannot be desired that this extensive and valuable Cen-
tral American coast, on the highway of nations between the Atlantic
and Pacific, should be appropriated to the use of 3,000 or 4,000 wan-
dering Indians as an independent state, who would use it for no other
purpose than that of hunting and fishing and savage warfare. If such
an event were possible, the coast would become a retreat for pirates
and outlaws of every nation from whence to infest and disturb the com-
merce of the world on its transit across the Isthmus, and but little bet-
ter would be its condition should a new independent state be established
on the Mosquito shore; besides, in either event, the present Central
American States would deeply feel the injustice which had been done
them in depriving them of a portion of their territories; they would
never cease in attempts to recover their rights, and thus strife and con-
tention would be perpetuated in that quarter of the world where it is
so much the interest, both of Great Britain and the United States, that
all territorial questions should be speedily, satisfactorily, and finally
adjusted."

To this is given in reply an elaborate statement of Lord Clarendon (Brit, and
For. St. Pap. for 1855-^56, vol. 46, 255-271); a rejoinder by Mr. Buchanan
(ibid,t 272), and further correspoudeuco between Mr. Buchanan, Mr. Marcy,
Mr. Dallas, Lord Clarendon, and Mr. Cranix)ton. See App., ^ 150^.

" A protectorate necessarily implies the actual existence of a sovereign
authority in the protected power, but where there is, in fact, no such
authority there can be no protectorate. The Mosquitos are a conven-
ience to sustain British pretensions, but cannot be regarded as a sover-
eign state. Lord Palmerston, as was evinced by his remark to Mr.
liives, took this view of the political condition of the Mosquitos, and it
is so obviously correct that the British Government should not be sur-
prised if the United States consider the subject in the same light."

Mr. Marcy, Sec. of State, to Mr. Buchanan, Aug. 6, 1855. MSS. Inst., Gr. Brit.

" It, however, became apparent, at an early day after entering upon
the discharge of my present functions, that Great Britain still continued
in the exercise or assertion of large authority in all that part of Central
America commonly called the Mosquito coast, and covering the entire
hngth of the State of Nicaragua and a part of Costa Rica; that she
regarded the Belize as her absolute domain, and was gradually extend-
ing its limits at the expense of the State of Plonduras ; and that she

CHAP. XII.] MOSQUITO COUNTRY AND BELIZE. [§ 295.

had formally coloDized a considerable iusular group known as tbe Bay
Islands, and belonging, of right, to that State.

"All these acts or pretensions of Great Britain, being contrary to the
riglits of the States of Central America, and to the manifest tenor of her
stipulations with the United States, as understood by this Government,
have been made the subject of negotiation through the American min-
ister in London. I transmit herewith the instructions to him on the
subject, and the correspondence between him and the British secretary
for foreign affairs, by which you will perceive that the two Governments
differ widely and irreconcilably as to the construction of the convention
aud its efifect on their respective relations to Central America.

'^ Great Britain so construes the convention as to maintain unchanged
all her previous pretensions over the Mosquito coast and in different
parts of Central America. These pretensions as to tbe Mosquito coast
are founded on the assumption of political relation between Great Brit-
ain and the remnant of a tribe of Indians on that coast, entered into
at a time when the whole country was a colonial possession of Spain.
It cannot be successfully controverted that, by the public law of Europe
and America, no possible act of such Indians, or their predecessors,
could .confer on Great Britain any political rights.

^^Great Britain does not allege the assent of Spain as the origin
of her claims on the Mosquito coast. She has, on the contrary, by re-
peated and successive treaties, renounced and relinquished all preten-
sions of her own, and recognized the full and sovereign rights of Spain
in the most unequivocal terms. Yet these pretensions, so without solid
fonndation in the beginning, and thus repeatedly abjured, were, at a
recent period, revived by Great Britain against the Central American
States, the legitimate successors to all the ancient jurisdiction of Spain
in that region. They were first applied only to a defined part of the
coast of Nicaragua, afterwards to the whole of its Atlantic poast, and
lastly to a part of the coast of Costa Rica ; and they are now reasserted
to this extent, notwithstanding engagements to the United States.

"On the eastern coast of Nicaragua and Costa Eica, the interference
of Great Britain, though exerted at one time in the form of military
occupation of the port of San Juan del Norte, then in the peaceful pos-
session of the appropriate authorities of the Central American States,
IB now presented by her as the rightful exercise of a protectorship over
the Mosquito tribe of Indians.

^'But the establishment at the Belize, now reaching far beyond its
treaty limits into the State of Honduras, and that of the Bay Islands,
appertaining of right to .the same state, are as distinctly colonial gov-
ernments as those of Jamaica or Canada, and therefore contrary to the
very letter as well as the spirit of the convention with the United States,
as it was at, the time of ratification, and now is, understood by this
Government.

§ 295.] ISTHMUS OP PANAMA. [CHAP. XII.

"The interpretation which the British Government, thus in assertion
and act persists in ascribing to the convention, entirely changes it»
character. While it holds us to all our obligations, it in a great measure
releases Great Britain from those which constituted the consideration
of this Government for entering into the convention. It is impossible,
in my judgment, for the United States to acquiesce in such a construc-
tion of the respective relations of the two Governments to Central
America.

"To a renewed call by this Government upon Great Britain to abide
by and carry into effect the stipulations of the convention according to
its obvious import, by withdrawing from the possession or colonization
o£ portions of the Central American States of Honduras, >Jirara^ua, and
Costa Rica, the British Government has at length replied, allirming
that the operation of the treaty is prospective only, and did not require
Great Britain to abandon or contract any possessions held by her in
Central America at the date of its conclusion.

"This reply substitutes a partial issue, in the place of the general
one presented by the United States. The British Government passes
over the question of the rights of Great Britain, real qr supposed, in
Central America, and assumes that she had such rights at the date of
the treaty, and that those rights comprehended the protectorship of the
Mosquito Indians, the extended jurisdiction and limits of the Belize,
and the colony of the Bny Islands, and thereupon proceeds by impli-
cation to infer that, if the stipulations of the treaty be nu^rely future in
effect. Great Britain maj- still continue to hold the contested portions
of Central America. The United States cannot admit either the infer-
ence or the premises. We steadily deny that, at the date of the treaty,
Great Britain had any possessions there other than the limited and pe
culiar establishment at the Belize, and maintain that, if she had any,
they were surrendered by the convention.

"The Government, recognizing the obligations of the treaty, has, of
course, desired to see it executed in good faith by both parties, and in
the discussion, therefore, has not looked to rights which we might (ks-
sert, inde])endeutly of the treaty, in consideration of our geograjihical
position and of other circumstances which create for us relations to the
Central American States different from those of any Government of
Europe.

* "The British Government, in its last communication, although well
knowing the views of the United States, still declares that it si-es no
reason why a conciliatory spirit may not enable the two Governments
to overcome all obstacles to a satisfactory adjustment of the subjret.

" Assured of the correctness of the construction of the treaty <*(in-
stantly adhered to by this Government, and resolved to insist on the
rights of the Unite<l States, yet actuated also by the same desire
which is avowed by the British Government, to remove ail causes of

CHAP. Xn.] MOSQUITO COUNTY AND BELIZE. [§ 295.

scrioiis misuDderstanding between two nations associated by so many
ties of interest and kindred, it has appeared to me proper not to con-
sider an amicable solntion of the controversy hopeless.

" There is, however, reason to apprehend that, with Great Britain in
the actual occupation of the disputed territories, and the treaty, there-
fore, practically null so far as regards our rights, this international dif-
ficulty cannot long remain undetermined without involving in serious
danger the friendly relations which it is the interest as well as the duty
of both countries to cherish and preserve.^ It will afford me sincere
gratification if future efforts shall result in the success anticipated here-
tofore with more confidence than the aspect of the case permits me now
to entertain."

President Pierce, Third Annaal Message, 1855.

President Pierce's message of Feb. 14, 1856, covering correspondence with re-
spect to Nicaragua and Costa Bioa and the Mosqnito Indians, is given in
Senate Ex. Doc. 25, 34th Cong., 1st sess.

^*The President cannot himself admit as true, and therefore cannot
under any possible circumstances advise the Bepublic of Nicaragua to
admit, that the Mosquito Indians are a state or a Government any more
than a band of Maroons in the island of Jamaica are a state or Govern-
ment. Neither, of course, can he admit that any alliance or protective
eonnection of a political nature may exist for any purpose whatever
1)etween Great Britain and those Indians.'^

Mr. Marcy, Sec. of State, to Mr. Dallas, Jnly 26, 1856. M6S. Inst., Gr. Brit.

As to protests by the Qovemment of the United States against English and
French naval expeditions to prevent filibusters landing "on any part of
the Mosqnito coast or at Greyto\?n, without any application for that pur-
pose from any local authority/' see Mr. Cass, Sec. of 8tate« to Mr. Lamar,
Dec. 1, 1858, Mar. 2, 1859. MSS. Inst., Am. St.

^^The same rules applicable to the aborigines elsewhere on the Ameri-
can continent are supposed to govern in the case of the Mosquito In-
dians within the territorial limits of the Bepublic of Nicaragua, to
^bom the United States deny any claim of sovereignty, or any other title
than tbe Indian right of occupancy, to be extinguished at the will of the
discoTercr, though a species of undefined protectorate has several times
been claimed over them by Great Britain. This subject gave rise to
nmch discussion, on account ot the contiguity of the territory to the
proposed iuteroceanic communication, to promote which a convention
was concluded between the United States and Great Britain on 19th
April, 1850. In that convention there is no reference to the Mos-
quito protectorate, though by a subsequent agreement between these
powers, dated 30th April, 1852, intended to be proposed to the accept-
ance of the Mosquito King, as well a« of Nicaragua and Costa Bica,
there was a reservation to these Indians of a district therein described.
Bat Nicaragua refused to enter into the arrangement, and protested
against all foreign intervention in her a£fairs. (Congressional Globe,
1852.'53, xxvi, 268; iWd., xxvii, 262, 286; 8 Stat. L., 174: Annuaire des
deux mondes, 1852-'53, 741 ; Appendix, 922; President Fillmore's mes-
sage, Annual Beg., 1852, 301. See also for negotiations with Great

S. Mis. 162— VOL. m— ^ 33

§ 295.] ISTHMUS OF PANAMA. [CHAP. XIL

Britain subseqaent to the interoceanic treaty, Cong. Doc, 32d Cong.,
2d sess. Senate Ex. Docs. 12 and 27 ; ibi€Lj 33d Cong., Ist sess., Ex.
Docs. 8 and 13.)"

Lawrence's Wheaton (ed. 1863), 71.

President Bachanan, in his foarth annaal message, annoanced. that
^* Her Britannic Majesty concluded a treaty with Honduras on the 28th
November, 1859, and with Nicaragua on the 28th August, 1860, re-
linquishing the Mosquito protectorate." By that treaty Great Britain
recognized, as belonging *' to and under the sovereignty of Nicaragua,
the country hitherto occupied by the Mosquito Indians, within the front-
iers of the Bepublic ; tiiat a certain designated district should be as-
signed to these Indians, but tkat it should remain under the sovereignty
of Nicaragua J and should not be ceded by the Indians to any foreign prince
or state, and that the British protectorate should cease three months after
the exchange of ratifications/'

Ihid,

It was provided, however, in this treaty, that the titles theretofore
granted under the alleged protectorate should be valid. {Supra, § 150/1)
Under these titles the British settlers held. It has already been
observed {supra, § l50f) that President Buchanan's expressions of satis-
faction with the treaty, in the message above noticed, were ba43ed on
the assumption that Great Britain had ceased to exercise any influence
whatever over the Mosquito country. That this is not the case, how-
ever, follows from the ratification, by the treaty, of British titles from
Indians, already noticed, giving British subjects a controlling power in
the territory, and from other conditions to be presently detailed.

Difficulties having arisen between Great Britain and Nicaragua, un-
der this treaty, as to the degree of influence Great Britain was entitled
to exercise over the Mosquito coast, the two x>owers agreed in 1880 to
submit the questions at issue between them to the arbitrament of the
Emperor of Austria. As translated, the material parts of the award
are as follows :

(1) ^^ The treaty of Nicaragua of January 28, 1860, does not recognize
in fTicaragua a full and unlimited sovereignty over the Mosquito Indians,
but concedes in the third article to these Indians a limited autonomy
(self-government. )

(2) '< The Bepublic of Nicaragua is authorized, in order to give evi-
dence of her sovereignty of the territory of the Mosquito Indians, to
hoist on it the flag of the Bepublic.

(3) ^^The Bepublic of Nicaragua is authorized to appoint a commis-
sioner in order to the protection (wahrnehmung) of her sovereign rights
in the territory of the Mosquito Indians.

(4) ^'The Mosquito Indians are authorized to carry their own dag,
provided that in it there is a recognition of the sovereignty of the
Bepublic of Nicaragua.

(5) << The Republic of Nicaragua is not authorized to grant concessions
for the obtaining of the natural products of the territory assigned to
the Mosquito Indians. This right belongs to the Mosquito Government.

(6) ^< The Bepublic of Nicaragua Is not authorized to regulate the trade
of the Mosquito Indians, or to tax the importation or exx>ortation of
goods into or fi'om that territory. This right belongs to the Mosquito
Government.

CHAP. Xn.] MOSQUITO COUNTRY AND BELIZE. [§ 295.

(7) " The Bepublic of Nicaragaa is bound to pay the arrears of annuity
due by the treaty to the Mosquito Indians."

Article 8 (the last article) relates exclasively to the relations of
Nicaragua to the free port of San Juan del Norte (Oreytown).

To the award of the Emperor is appended an opinion (gutachten) in
which is given in detail the reasons on which his conclusion rests. From
this opinion the following condensed translation is given of the passages
bearing upon the present issue:

*^ L The title to the territory occupied by the Mosquito Indians, on the
east shore of Central America, though with an undefined boundary on
the land sides, was for a long time in dispute. On the one side it was
claimed by the Spanish- American states of South America, as succeed-
ing to the rights of Spain. Spain had before the separation of these
states, uniformly asserted her claim to the title, and had in 1803, is-
sued a decree for its enforcement. But neither Spain nor the states
which succeeded her had ever reduced their claim into possession ; and
the Mosquito Indians were in this way, so far as concerns the Spanish
and Spanish-American authorities, left in practical independence. This
independence they exercised by entering into commercial and interna-
tional relations, particularly with England. Their relations with Eng-
land began immediately after England's conquest of Jamaica in the last
iialf of the seventeenth century, and ripened in 1720 into a formal
treaty between the governor of Jamaica and the chief (or king) of the
Mosquito Indians, which finally grew into an international relation of
protectorship. (Schutzverhaltniss.) But this protectorate was con-
tested not only by the Spanish-American states, but by the United
States of America ; a contest which increased in earnestness as the
question of isthmus transit grew in importance.

"In 1848, the Mosquito Indians having, with the help of England, ob-
tained possession of the important sea- port of San Juan del Norte (Grey-
town) complications threatening war grew up between them and the
United States under whose protection the Eepnblic of Nicaragua had
placed itself. To remove these difficulties England and the United
States concluded in April, 1850, the Clay tou-Bulwer treaty,^hich soon,
however, gave rise to fresh difficulties. England's object was, by an
arrangement with the United States to determine the relations of the
Mosquito Indians, and in pnrticular of the sea-port of San Juan del
Norte (Greytown). In this way originated in April, 1850, the so-called
Crampton- Webster treaty (Martens-Samsoer, Kecueil de Trait^s, xiv,
195) in which England tacitly renounced the protectorate of the Mos-
quito Indians and conceded that the sovereignty of the whole of the
Mosquito territory within the limits of Nicaragua should be recognized
as in Nicaragua, with the exception of a definitely bounded territory
which was to be left to the unrestrained and independent control of the
Mosquito Indians. Nicaragua, however, declined to accede to this ar-
rangement, so fkr as it gave independent territory to the Mosquito In-
dians, but claimed sovereignty over the whole coast. Further negotia-
tions with the United States having proved abortive (the Clarendon-
Dallas treaty, the last effort in this direction, not having been ratified
by the Senate of the United States) England entered into direct nego-
tiations with Nicaragua, which ended in the treaty of Managua of Jan-
nary 28, 1860.

"IL In this treaty England expressly surrendered the protectorship
of the Mosquito country, and recognized the sovereignty of Nicar^ua
over it under certain limitations, bounding it by fixed lines withm wnicn

§ 295] ISTHMUS OF PANAMA. [CHAP. Xn.

the Indians were to have the right of self-government. The question
sabmitted to the determination of the Emperor of Austria was the re-
lationship between such sovereignty on the one side and such self-gov-
ernment on the other. As to this the following conclusions are reached :

^^ The sovereignty of Nicaragua extends over the whole coa^t. This
excludes, under the treaty, an absolute internationally recognizable
sovereignty in the Mosquito Indians.

'^ The Mosquito Indians are subordinated to the protectorate of Nica-
ragua iu the plaoe of the former protectorate of England. They have,
however, self-government assigned to them over a specifically limited
territory. This territory, which is called Beserva Mosquito (Mosquito
reservation), is an integral and inseparable part of the collective ter-
ritory of the Kepublic of Nicaragua, and an international appurtenance
(pertiuenz) of the mainland. Within the limits of the territory thus
prescribed the Mosquito Indians are to enjoy their own mode of life and
national existence ; this territory, although remaining part of Nicara-
gua, is immediately under the control of the Indians, as their territory,
the laud of the Mosquitos. This indirectly follows from the clause
prohibiting: alienation of the territory by the Mosquito Indians to a
foreign power. Within the territory, by the very words of the treaty,
the Mosquito Indians have the right of governing {according to their own
customs, and according to any regulations which may from time to time be
adopted by them^ not inconsistent toith the sovereign rights of the Bq^t^lic
of Nicaragua) the/mselves^ and all persons residing voithin such district.
* * * But this ^ self-government' does not; extend to foreign affairs,
as the Beserva Mosquito internationally forms part of the Bepublic Nic-
aragua. The Mosquito Indians have not, therefore the right to enter
into relations of treaty with foreign states, to interchange with such
states diplomatic agents, to wage war or make peace. Their ^ self-gov-
ernment ' is exclusively municipal. But it precludes, under the treaty,
Nicaragua from granting monopoly privileges as to the products of the
Mosquito territory, and from interfering with the port duties imposed
by the Mosquito authorities. And there is nothing in the subsequent
condition ol»the territory which relieves Nicaragua from the payment of
the annuity (rente) agreed on by the treaty.''

On the question of the right of England to interpose to exact the ful-
fillment of her treaty with Nicaragua it is added :

^^ It is true that England in the treaty of Managua recognized the
sovereignty of the Bepublic of Nicaragua over the Mosquito territory,
and renounced her own protectorate. But this was ^subject to the con-
ditions and engagements specified in the treaty.' England has her own
interest in the fulfillment, in favor of her former constituents, of those
conditions, and may, therefore, in her own name, press such fulfillment
This cannot be called an unjustifiable intervention,' as it is simply
pressing a treaty guarantee."

It is a matter of notoriety that the governing population in the Mos-
quito country consists of British subjects (whites or negroes from Ja-
maica), acting under laws based on those of England, with English proc-
ess in the English language. It has already been seen that under the
treaty of Great Britain with Nicaragua, titles previously granted by the
Mosquitos are validated, though this is in defiance of the rule that In-
dian grants convey no title internationally valid. {Supra, § 150/:) But
however this may be, there can be no question that, with such a state
of facts at least in controversy. Great Britain, so far from renouncing
her protectorship over the Mosquito Indians, takes the position of thek

CHAP. Xn.] HONDURAS: YENEZUEUL [§§ 296, 297.

gaardian in their straggles with ^icaragna, appeais as their protector
before an international coort, and is recognized by that conrt as holding
this gnardianship.

(5) HOKDURAB.

§296.

The treaty relations of Honduras to the United States and to Great
Britain in the present connection, are noticed in prior sections stg^a,
§§ 146, 150/1 It will also be seen that the British title to Honduras is
based originally on an informal concession to British settlers to cut log-
wood and mahogany on the Belize, which ultimately was merged in an
alleged conquest fix^m Spain. {Supray § 150 /.) As to effect of inter-
mediate wars on British title to the above franchise, see tn/ra, § 303;
mpm, § 135.

(6) Ymsezukxjl,

§ 297.

The treaty relations of the United States with Yenezuela are noticed
nrpro, § 165a. The claims against Yenezuela, and the convention there-
for, are discussed supra^ § 220.

CHAPTER XIII.

FISHEBIES.

[As some of the principal questions involved in this chapter are now
the subject of diplomatic negotiation, the course taken in respect to
other portions of this work is departed from, and instead of a republi-
cation of extracts at large from the pertinent documents, a summary is
given of the material doctrines of international law bearing on the topic,
this summary consisting mainly of references to points stated in oUier
chsipters. The notes given are mainly such as explain the history of the
doctrines stated in the text, and do not contain references to present
negotiations.]

I. Law of nations.
(1) Fiahing on high aeas open to all, i 299.

(3) Sovereign of shore has Jnrisdiction of three-mile marine belt following the
sinaosities and indentations of the ooast| $ 300.

n. NoRTBXAST Atlantic fibhbries. •

(1) These were conquered firom France by the New England colonies, acting in
co-operation with Great Britain, with whom they were afterwards held in
common by such colonies, $ 301.

(8) Treaty of peace ^1783) was not a grant of independence, 'bat was a partition

of the empire, the United States retaining a common share in the flaheriesy
$308.

(3) War of 1812 did not divest these rights, $ 303.

(4) Treaty of 1818 recognised their existence and affirmed their continnance, $ 304,

(5) Under these treaties the three-miles belt follows the sinaosities and indents*

tions of the coast, $ 305.

(6) Bay of Fnndy and other large bays are open seas, $ 306«.

(7) Ports of entry are not affected by limitations imposed by treaty of 1818, $ 306.
(8j British municipal legislation may restrict, bat cannot expand, British rights

under these treaties, $ 307.

(9) Great Britain, and not her provinces, is the sovereign to be dealt with for in-

fraction of such fishing rights, $ 308.

in. Bt purchase of Alaska the United States is entitled to the joint
RIGHTS of Russia and of the United States in Northern Pacific,
$309.

I. LAW OF NATIONS,

(1) Fishing on high seas open to all.

§299.

The high seas (with the exception of territorial waters) are open to all
nations, no nation having territorial title to them, except in respect to
the particular waters covered by its ships.

Supra, ii 26, 33. Schuyler's Am. Dip., AOiff.

See articles in Revue des Deux-Mondes, les pteheries de Terre Neuve et les

Traits, Nov., 1674, t xtI, and in 29 Hunt's Merch. Mag., 420.
As to right of nations oyer sea fisheries see House Bep. 7, 46th Cong., 1st sess.

CHAP. XHL] northeast ATLANTIC. [§§ 300a, 301.

(2) SOVBIKllQy OF 8H0BB HAS JU1II8DICTION OF THRBX-IOLB MAHINX BXLT FOL-
LOWING THX filKUOaiTIBa AND INDBNTATI0N8 OF TKB COAST.

§300.

It has been already seen that rivers and inland lakes and seas, when
contained in a partienlar state, are subject to the sovereign of such
state, and that when a river divides two states each has jorisdiction of
the waters that wash his shores, this jurisdiction being divided by the
middle of the channel of the river unless otherwise provided by treaty
[iuproj $ 30). It has also been seen that the prevalent view, so &r as
eoncerns the North Atlantic waters, is that the sovereigns of shores
bordering those waters^ have, by usage, when not by treaty, a police
jarisdiction over a manne belt following the sinuosities and indenta-
tiona of the shore, and extending seawaM three miles (supra^ § 32).

XT. NORTHEAST ATLANTIC FI8BBEIE8.
(1) Thbsi wxbx conquxbsd fbom Fsancb bt THX New England coLONns, co-

OPSRATING WTTH GRBAT BBITAIN, WITH WHOM THNT WBBX AFTXRWABDS HXLD
IX COMMON BT THOflB COLONDES.

$301.

To the energy, valor, and skill of the New England forces engaged
in tJie attack by Great Britain on the French Canadian coast in 1758
the conquest of that coast is largely due. The New England seafaring
and fishing population, having taken a leading part in this conquest
became, not merely of right but firom the nature of things, tenants in
common of the fisheries thereby conquered. ^ This tenancy they con-
tinned to hold at the time of the treaty of peace.

"The arguments on which the people of America found their claim to fiah on the
bunks of Newfoundland arise, first, from their having once formed a part of the
British Empire, in which state they always enjoyed, as fully as the people of Britain
themselyee, the right of fishing on those banks. They have shared in all the wars
for the extension of that right, and Britain could with no more Justice have excluded
^to from the eojoyment of it (even supposing that one nation could possess it to
the exclnsion of another), while they formed a part of that empire, than they could
exclode the people of London or Bristol. If so, the only inquiry is, How have we
lost this rij^htf If we were tenants in common with Qreat Britain while united
^ith her, we still continue so, unless by our own act we have relinquished our title.
Had ire parted with mutual consent we should doubtless have made partition of our
Mmmon rights by treaty. But the oppressions of Great Britain forced us to a sepa-
lotion (which must be admitted, or we have no right to be independent); and it
^^Dot certainly be contended that those oppressions abridged our rights or gave
new ODOB to Britain. Our rights, then, are not invalidated by this separation, more
particnlarly as we have kept up our claim fh>m the commencement of the war, and
Signed the attempt of Great Britain to exclude us ftom the fisheries as one of the
^naes of our recurring to arms."

Mr. R. R. Livingston, Secretary of State, to Dr. Franklin, January 7, 1782.
9 Franklin's Works (Sparks' ed.), 135. See Jay's Fisheries Dispute, 1887.

Fisheries "on the coasts and bays of the provinces conquered in America from
^^Dce were acquired by the common sword, and mingled blood of Americans and
Englishmen— members of the same empire, we, with t)iem, had a common right to

§ 302.] FI8HEBIE8. [CHAP. XIH.

these fisheries; and, in the diyision of the empire, Enf^land oonfinned our title with-
out condition or limitation, a title equally irrevooahle with those of our boundaries
or of our independence itself.''

Note to speech of Mr. Rnfhs Ring, in Senate, April 3, 18ia Annals of Cong.,
1818, p. 338.

''The inhabitants of the United States had as clear a right to every branch of the
fisheries, and to cure fish on land, as the inhabitants of Canada or Nova Scotia ; * *
the citizens of Boston, NewTork, or Philadelphia had as clear a right to those fisheries,
and to cure fish on land, as the inhabitants of London, Liverpool, Bristol, Glasgow,
or Dublin ; fourthly, that the third article was demanded as an ultimatum, and it was
declared that no treaty of peace should be made without that article. And when the
BritiBh ministers found that peace could not be made without that article, they con-
sented— ^for Britain wanted peace, if possible, more than we did ; fifthly, we asked no
favor, we requested no grant, and would accept none.''

Ex-President John Adams to William Thomas, August 10, 1822. This letter
was quoted and its positions adopted by Mr. Caes in his speech on the
fisheries in the Senate on August 3, 1852 (App. Cong. Globe. 1852). See
report on fisheries by Lorenzo Sabine, 1853.

''Louisburg, on Cape Breton, held by the French, was supposed to be the most im-
portant and commanding station (in French North America) and to have more influ-
ence than any other upon the destinies of this part of the country, and it was with a
force of between three and four thousand Massachusetts men, under Pepperell, and
a few hundred from the colonies, with two hundred and ten vessels, that sailed to
Louisburg, invested and took it for the British Crown in trust for the Britiah Crown
and colonies."

Mr. Dana, Halifax Com., 1653.

(2) Tksatt of fbace (1783) was not a grant of independence, but was a par-
tition OF THE EMPIBE, THE UNITED STATES RETAINING THEIR COMMON SHARE
IN THE FISHERIES.

§302.

Tl^ treaty of peace (1783) did not grant independence, nor did it
create the distinct colonies, afterwards States in the Federal Union of
the United States, nor did it assign their bonndaries, or endow them with
franchises or servitudes such as their rights in the fisheries. <*The re*
lations which had subsisted between Great Britain and America,'' to
adopt the language of the Master of the Bolls in Sutton v. Sutton, 1
Myl. & B., 675, hereafter cited more fully, ^^when they formed one
empire," ^^made it highly reasonable" in firaming the treaty of peace,
'^ that the subjects of the two parts of the divided empire should, not-
withstanding the separation, be protected in the mutual enjoyment" of
certain territorial rights. It was certainly ^^ reasonable " that the British
negotiators should have adopted the principle of partition as above
stated. They represented a ministry which, though afterwards torn
asunder by the personal contentions of Shelburne and Fox, entered
into power pledged to the concession of a friendly separation between the
two sections, conceding to each mutual rights of territoriality. Aside
from the fact that such a separation, carrying with it a retention of old
reciprocal rights, was far less galling to Great Britain than would be
the admission that independence was wrung from her by conquest;
the idea of a future reciprocity between the two nations, based on
old traditions, as moulded by modern economical liberalism, was pe-
oaliarly attractive to Shelburne, bv whom, as prime minister, the

CHAP. Xni.] NORTHEAST ATLANTIC. [§ 302,

negotiations were ultimately closed. (See Franklin MSS., deposited
in Department of State; Bancroft's Formation Fed. Const., vol. VI,
ch. 1.) On this basis alone, also, conld, as we will presently see.
British subjects be secure of taking, by inheritance or purchase, landed
estates in the United States; on this basis alone could Great Brit*
ain be sure of a common enjoyment of the lakes and of the Missis-
sippi, whose northern waters were then supposed to pass in part through
British territory. Hence, unquestionably under the influence of this
Tiew, which was then pressed by Great Britain^ at least as eagerly as
it was by the United States, no word of cession or grant was intro-
duced into the preliminary articles of peace or into the treaty of peace
based on them. So far from this being the case, they adopt the phrase-
ology of treaties of partition, or, as the Master of the Rolls calls it, of
*' separation." The two sections of the empire agree to separate, each
taking with it its territorial rights as previously enjoyed ; and among
these rights, that which was most important to the United States, and
was most conspicuously before the commissioners, was that to the com-
mon use of the fisheries. Applying to the fisheries this principle of
partition or of <^ separation," which it was then so essential for Great
Britain, in view of the great interests held by her subjects in the United
States, to assert, the commissioners accept«l, as part of the same sys-
tem, the position, that the United States held, in common with Great
Britain, the fisheries which previously it had held, in entirety with Great
Britain, when it was subject to titular British supremacy. This will at
once be seen by an examination of the fishery article in the treaty of
1783. This article is as follows :

"Art. III. It is agreed that the people of the United States shall continue to enjoy
unmolested the right to take fish of every kind on the Grand Bank, and on all the other
banks of Newfoundland ; also in the Gnlph of Saint Lawrence, and at all other places
in the sea where the inhabitants of both countries used at any time heretofore to fish.
And ahso that the inhabitante of the United States eKall liave liberty to take fish of every
kind on such part of the coast of Newfoundland as British fishermen shall use (but
QOt to dry or cure the same on that island), and also on the coasts, bays, and creeks of
all other of His Britannic Majesty's dominions in America ; and that the American
fishermen shall have liberty to dry and cure fish in any of the unsettled bays, har-
bors, and creeks of Nova Scotia, Magdalen Islands, and Labrador, so long as the same
shall remain unsettled ; but so soon as the same or either of them shall be settled, it
•hall not be lawful for the said fishermen to dry or cure fish at such settlement, with-
out a previous agreement for that purpose with the inhabitants, proprietors, or pos-
semors of the ground/' See proceedings in Continental Congress, as detailed in Jay's
Fisheries Dispute, 24.

That colonies becoming independent retain their boundaries and prior territorial
rights has been already generally stated. (See eu^pra^ $ 6.)

"By the third article of the treaty of 1783 it was agreed that the people of the
United States should eonttnue to e^joy the fisheries of Newfoundland and the Bay of
Stint Lawrence, and at all other places in the sea where the inhabitants of both
oonntries need at any time theretofore to fish ; and also that they should have certain
fishing liberties on all the fishing coast within the British jurisdiction of Nova Scotia,
Uagdalen Islands, and Labrador. The title by which the United States held those
fisbiug rights and liberties was the same. It was the possessory use of the right *
* * at any time theretofore, as British subjects, and the acknowledgment by Great
Britain of its continuance in the people of the United States after the treaty of separa-
tion. It was a national right; and, therefore, as much a rights though not so imme-
diate an intereetf to the people of Ohio and Kentucky, Ay, and to the people of LoTiM.*

$ 802.] FISHERIES. [chap. zm.

ana, after they became a part of the people of the United States, as it was to the
people of Maasachnsetts and Maine."

Mr. J. Q. Adams, The Fisheries and the Mississippi, 96.

** The oontinnance of the fishing liberty was the great object of the article (the
third of the treaty of 1783), and the language of the article was accommodated to the
severance of the Jurisdictions, which was consummated by the same instrument. It
was coinstantaneous with the severance of the Jurisdiction itself, and was no more a
grant from Qreat Britain than the right acknowledged in the other part of the article,
or than the independence of the United States acknowledged in the first article. It
was a continuance of possessions enjoyed before ; and at the same moment and by
the same act under which the United States acknowledged those coasts and shores as
being under a /orei^ Jurisdiction, Great Britain recognized the liberty of the people
of the United States to use them for purposes connected with the fisheries."

Mr. J. Q. Adams, The Fisheries and the Mississippi, 188. Adopted in 1 Ly-
man's Diplomacy of the U. S., 117.

'' That this was the understanding of the article by the British Gtoyemment as well
as by the American negotiators is apparent to demonstration by the debates in Parlia-
ment upon the preliminary articles. It was made, in both houses, one of the great
objections to the treaty. In tl^e House of Commons, Lord North • • • said:
' By the third article we have, in our spirit of reciprocity, giyen the Americans an
unlimited right to take fish of eve^ kind on the Great Bank and on all the other
banks of Newfoundland. But this was not sufficient. We have also given them the
right of fishing in the Gulf of Saint Lawrence, and at all other places in the sea where
they have heretofore enjoyed, through ns, the privilege of fishing. They have like-
wise the power of even partaking of the fishery which we still retain. We have not
been content with resigning what we possessed, but even share what we have left.'
* * * In this speech the whole article is considered as an improvident conceasion
of British property ; nor is there suggested the slightest distinction in the nature of
the grant between the right of fiishing on the banks and the liberty of the fishery on
the coasts. Still m6re explicit are the words of Lord Loughborough, in the House ot
Peers. 'The fishery,' says he, ' on ike aluMrea retained hy Britain is, in the next article,
not ceded but recognized as a right inherent in the Americans, which, though no longer
British subjects, they are to oonHnne to eftfop unmoleeted, no right, on the other hand,
being reserved to British subjects to approach their shores, for the purpose of fishing,
in this reciprocal treaty.'"

Mr. J. Q. Adams, The Fisheries and the Mississippi, 189, 190.

"The treaty of '83 was an instrument of a peculiar character. It differed in its most
essential characteristics ftom most of the treaties made between nations. It woe a
treaty of partition^ or treaty to ascertain the boundaries and the right of the nations
the mother country acknowledged to be created by that instrument."

1 Lyman's Diplomacy of the U. S., 117.

''From the very moment the United States became a sovereign power they were
elearly entitled to an enjoyment of these rights (to the fisheries) by the law of nations."

Mr. C. A. Rodney, opinion filed with and indorsed by President Monroe, Nov.
4, 1818 ; MSS. Monroe papers, Dep. of State, cited more folly i^fira. See to
this effect Mcllvaine v, Coxe, 4 Cranch, 209, and other cases cited supra, $ 150.

As to the general questions discussed above see 1 John Adams's Works, 292, 343,
368, 370, 373, 670 ; 2 ibid,, 174 ; 3 ibid., 263, 318, 319; 7 ibid., 45, 654 ; 8 ibid.,
5. 11, 439 ; 9 ibid,, 487, 563 ; 10 ibid., 131, 137, 160, 354, 403.

As to boundaries of the colonial interests see 3 John Adams's Works, 330 ; 8
ibid., 11, 16, 20, 34.

CHAP. Xin.] NORTHEAST ATLANTIC. [§ 303.

(3) War of 1812 did not divest these rights.

§303.

Ai has been shown in a prior section, the prevalent opinion is that a
war between two sovereif^ns does not by itself vacate such provisions in
treaties theretofore existing between them as relate to primary national
prerogatives, snch, for instance, as national independence, boundary, or
other integral appurtenances of sovereignty {8^praJ § 136). As such
appurtenances of the sovereignty of the New England States the fish-
eries are to be classed. The war of 1812, therefore, no more vacated the
tide of the United States to its common share in the northeastern fish-
eries than it vacated the independence of the States or the boundaries
which separated their territories from those of Great Britain.

"Aa little did the people of the United States renoonoe the doctrine that all the
rights and liberties recognized by the treaty of 1783 were in fall force as if the war
of 1812 had never occurred. The conflict of opinion was a^Jnsted by a new article,
•i little liable to be abrogated by a future war as the treaty of Independence."

Mr. J. Q. Adams, The Fisheries and the MissiBsippi, 162.

**.V8 a possession it was to be held by the people of the United States as it had been
held before. It was not, like the lands partitioned out by the same treaty, a corpo-
real possession ; but, in the technical language of the English law, an incorporeal
hereditament, and in that of the civil law a right of mere fiiculty, consisting in the
power and liberty of exercising a trade, the places in which it is exercised being
occupied only for the purposes of the trade. Now, the right or liberty to eqjoy this
poswssion, or to exercise this trade, could no more be affected or impaired by a decla-
ration of war than the right to the territory of the nation. The interruption to the
exercise of it, during the war, could no more affect the right or liberty than the
occupation by the enemy could affect the right to that. The right to territory could
be lost on^ by abandonment or renunciation in the treaty of peace, by agreement to
a new boundary line, or by acquiescence in the occupation of the territory by the
enemy. The fishery liberties could be lost only by express renunciation of them in
treaty, or by acquiescence, on the principle that they were forfeited, which would
have been a tacit renunciation.''

Mr. J. Q. Adams, The Fisheries and the Mississippi, 190; adopted in 1 Lyman's
Diplomacy of the U. S., 117.

*^ In the case of a cession of territory, when the possession of it has been delivered,
the article of the treaty is no longer a compact between the parties, nor can a subse-
quent war between them operate in any manner upon it. So of all articles the pur-
port of which is the aeknawledgment by one party of a pre-existing right belonging to
another. The engagement of the acknowledging party is consummated by the rati-
fication of the treaty. It is no* longer an executory contract, but a perfect right
united with a vested possession is thenceforth in one party, and the acknowledgment
of the other is in its own nature irrevocable. As a bargain the article is extinct;
but the right of the party in whose favor it was made is complete, and cannot be
sfiected by a subsequent war. A grant of a facultative right or incorporeal heredita-
ment, and specifically of a right of fishery, fh)m one sovereign to another, is an article
of the same description. • • • In the debates in Parliament on the peace of
Amiens, Lord Auckland said: 'He had looked into tjie works of the first publicists
on these subjects, and had corrected himself in a mistake still prevalent in the minds
of many, who state, in an unqualified sense, that all treaties between nations are
SDnolled bj war, and most be specially renewed if meant to be in force on the return
of peace. It ie true that treaties in the nature of compacts or concessions, the enjoy-

§ 303.] FISHERIES. [chap. XIIl.

ment of which haa been interrupted by the war, and has not been rene^i ed by the
pacification, are rendered nnll by the war. Bnt compacts not iuterrnpted by the
course and effect of hostilities, tueh as the regulated exerciae of aflehery an the reepective
coaeta of the belligerent powerSf the stipulated right of cutting wood in a particular dis-
trict, or possessing rights of territory heretofore eeded hy treaty, are artainty not (7e-
Btroyed or injured by war.' The Earl of Carnarvon, a member of the opposition, said,
in the same debate, * • • 'war does not abrogate any right, or interfere with the
right, though it does with the exercise, but such as it professes to litigate by war/
The same position was taken by Lord Eldon and Mr. Fox.''

Mr. J. Q. Adams, The Fisheries and the Mississippi, ld5, citing 23 Hansard,
• 1147.

''On the subject of the fisheries, within the Jurisdiction of Great Britain^ we have
certainly done all that could be done. If, according to the construction of the treaty
of 1783, which we assumed, the right was not abrogated by the war, it remains entire,
since we most explicitly refused to renounce it, either directly or indirectly.''

Mr. Gallatin to the Sec. of State, Ghent, 25 Dec, 1814 ; MSS. Dept. of State;
1 Gallatin's writings, 646; printed in full in The Fisheries and the MibPissippi,
58.

Mr. C. A. Rodney, who had been Attorney-General under Mr. Jefferson, and had since
then filled important public offices, was consulted (being then a Senator of the
United States) by Mr. Monroe in November, 1818, on the fishery question. From his
reply, heretofore unpublished, the following passages are extracted :

'< When the treaty of Amiens in 1802, between Great Britain, France, Spain, and
Holland, was under discussion in Parliament, it was objected by some members that
there was a culpable omission in consequence of the non -renewal of certain articles
in former treaties or conventions securing to England the giim trade of the river
Senegal and the right to cut logwood at the Bay of Honduras, etc. In answer to
this objection in the House of Lords it was well observed by Lord Auckland ' that
from an attentive perusal of the works of the publicists, he had corrected, in his own
mind, an error, still prevalent, that all treaties between nations are annulled by a war,
and to be re-enforced must be specially renewed on the return of peace. It was true
that treaties in the nature of compacts or concessions the enjoyment of which has
been interrupted by the war are thereby rendered null ; but compacts which were
not impeded by the course and effect of hostilities, such as the rights of a flehery on
the coasts of either of the poteers, the stipulated right of cutting logwood in a partic-
ular district— compacts of this nature were not affected by war. * * * It had
been intimated by some that by the non-renewal of the treaty of 1786 our right to
cut logwood might be disputed ; but those he would remind of the principle already
explained, that treaties the exercise of which was not impeded by the war were re*
established with peace. * * * He did not consider our rights in India or at Hon-
duras in the least affected by the non-renewal of certain articles in former treaties.'

''Lord Ellenborough (chief justice of the court of King's bench) 'felt surprise that
the non-renewal of treaties should have been urged as a serious objection to the defi-
nitive treaty. * * * He was astonished to hear men of talents argue that the
public law of Europe was a dead letter because certain treaties were not renewed.'

"Lord Eldon (then and at present the high chancellor of England and a member
of the cabinet) 'denied that the rights of England in the Bay of Honduras or the
river Senegal were affected by the non-renewal of treaties.'

"In the House of Commons, in reply to the same objection made in the House of
Lords, it was stated by Lord Hawkesbury, the present Earl of Liverpool, then secre-
tary of state for the foreign department and now prime minister of England, which
post he occupied when the treaty of Ghent was concluded, ' that to the definitive
treaty two faults had been imputed, of omission and commission. Of the former

CHAP. JUn.] NORTHEAST ATLANTIC. [§ 303.

tlii- cbief was the Dou-renewal of certain troaties and conventions. He observed the
principle on which treatie:^ were renewed was not understood. He affirmed that the
separate convention relative to oar East India trade, and relative to onr right of cnt-
ting logwood in the Bay of Honduras, had been altogether misunderstood. Our sov-
ereignty in India was the result of conquest, not established in consequence of stipu-
litions with France, but acknowledged by her as the foundation of them ; our rights
in the Bay of Honduras remained inviolate, the privilege of cutting logwood being
nnqaestionably retained. * * * He did not conceive our rights in India or at
Hondoras were affected by the non-renewal of certain articles in former treaties.'

"It is remarked in the Annual Register that Lord Hawkesbury's speech contained
tlie ablest defense of the treaty. The chancellor of the exchequer, Mr. Addingtou,
the present Lord Sidmouth, and the late Mr. Pitt supported the same principles in
the coarse of debate. I presume our able negotiators at Ghent entertained the same
opinions when they signed the late treaty of peace.

'<It may be recollected that during the Bevolntionary war, when the British Par-
liAment were passing the act to prohibit the colonies fh>m using the fisheries, some
members urged with great force and eloquence ' that the absurdity of the bill was
equal to its cruelty and iigustice ; that its object was to take away a trade from the
eoloDies which all who understood its nature knew they could not transfer to them-
selves; that God and nature had given the fisheries to New and not to Old England.'"

Opinion of 0. A. Rodney on the Fisheries, Nov. 3, 1818. Monroe MSS., Dept.
of State. See this opinion referred to supra, $ 135. See App., $ 303.

That, for the same reason that rights to fisheries are not extinguished by war, fish-
ing boats are ordinarily exempt from seizure in war, see Bupra^ $ 345.

As sustaining the text may be cited an important English ruling on the question
how far territorial rights given by the treaty of 1794 were abrogated by the war of
1812.

Article DC of th« treaty of 1794, on which the question arose, is as follows:

'*It is agreed that British subjects who now hold lands in the teixitories of the
United States, and American oitiaens who now hold lands in the dominions of His
Mi^eaty, shall continue to hold them according to the nature and tenure of their
respective estates and titles therein, and may grant, sell, or devise the same to whom
they please, in like manner as if they were natives ; and that neither they nor their
heirs or assigns shall, so fkr as may respect the said lands and the legal remedies
incident thereto, be regarded as aliens."

In 1830 the question came up before the master of the rolls whether this article
giving territorial rights in the United States to British subjects was abrogated by the
war of 1812. After elaborate argument the master of the rolls, Sir J. Leach, decided the
point as foUov^s :

'*Tbe relations which had subsisted between Great Britain and America when they
forwked otte empire led to the introduction of the ninth section of the treaty of 1794, and
made it highly reasonable that the eubjeote of the two parte of the divided empire ehould,
notwithetamding the separafton, be protected in the mutual enjoyment of their landed property;
and the priviUgee of natives being reciprocally given not only to the actual possessors of
lands bat to their heirs and assigns, it is a reasonable construction that it was the inten-
tion of the treaty that the operation of the treaty should bepermanent, and not depend upon
ike eontinuanoe of a state of peace."

Sutton V. Sutton, 1 Rub. & M., 675. This decree was not appealed from.

It is worthy of notice that the claim of British settlers to the nse of
the coast and waters of the Belize for the purpose of catting and ship-
ping logwood and mahogany, which claim was based on a remote in-
wrmal grant from Spain when sovereign of those shores, has always

§ 304] FISHERIES. [chap. XIIL

been asserted by Great Britain to have adhered to the British crown
unaffected by intermediate wars between Great Britain and Spain. See
Lord Hawkesbury's speech, quoted above by Mr. Eodney.

(4) Treaty of 1818 becogkizes the existence of these territobial rights and

affirms their continuance.

$304.

During the negotiations which preceded the treaty of Ghent the
title of the United States to the Northeast Atlantic fisheries was one
of the main subjects of discussion, and during this discussion the posi-
tions above taken were maintained by the United States as among the
essentials of a permanent settlement of the questions at issue between
the countries. In order, however, to relieve the issue of peace from
all incidents which were not necessary to its immediate determination,
the question of the fisheries was remanded to a subsequent distinct ne^
gotiation. This negotiation took place in London in 1817-^18, Messrs.
Gallatin and Eush being negotiators on behalf of the United States,
and Mr. Goulburn, utider-secretary of state, and Mr. Robinson, treas-
urer of the navy, negotiators on the part of Great Britain. The article
which, in the treaty settled by them, as finally ratified, relates to the
fisheries, is as follows:

''Article I. Whereas differences have arisen respecting the liberty claimed by the
United States, for the inhabitants thereof, to take, dry, and cnre fish on certain
coasts, bays, harbors, and creeks of His Britannic Majesty's dominions in America, it
is agreed between the high contracting parties that the inhabitants of the said United
State8«Aa22 have forever, in oommon with ike iubfecte of Eie Britannic Mt^eety^ the lib-
erty to take fish of eyery kind on that part of the sonthem coast of Newfoundland
which extends from Cape Ray to the Ramean Islands, on the western and northern
coast of Newfoundland, from the said Cape Ray to the Qnirpon Islands, on the shores
of the Magdalen Islands, and also on the coasts, bays, harbors, and creeks, firom Mount
Joly on the sonthem coast of Labrador, to and through the Strdghts of Belleisle,
and thence northwardly indefinitely along the coast, without prejudice, howeyer, to
any of the exclusive rights of the Hudson Bay Company : And that the American
fishermen shall also have liberty forever to dry and cure fish in any of the unsettled
bays, harbors, and creeks of the southern part of the coast of Newfoandland, heie-
above described, and of the coast of Labrador ; but so soon as the same, or any por-
tion thereof, shall be settled, it shall not be lawful for the said fishermen to dry or
cnre fish at such portion so settled without previous agreement for such purpose with
the inhabitants, proprietors, or possessors of the ground. And the United States hereby
renounce forever any liberty heretofore enjoyed or claimed by the inhabitants thereof
to take, dry, or cure fish on or within three marine miles of any of the coasts, bays,
creeks, or harbors of His Britannic Majesty's dominions in America not included within
the above-mentioned limits : Provided, however, that the American fishermen shall
be admitted to enter such bays or harbors for the purpose of shelter and of repairing
damages therein, of purchasing wood, and of obtaining water, and for no other pur-
pose whatever. But they shall be under such restrictions as may be necessary to
prevent their taking, drying, or curing fish therein, or in any other manner whatever
abusing the privileges hereby reserved to them.''

There is in this oonvention not only a sompalous avoidance of liny
expressions from which it might be inferred that the right to use the
fisheries was or had ever been a grant from Ureat Britain to the United
States, but the terms selected show that this right was recognized by

CHAP. Xin.] NORTHEAST ATLANTIC. [§ 304

both parties as one of prior unbroken existence. The United States
** renounce" certain incidents of a right of territoriality in the Brit-
ish waters and coast, which right of territoriality by the very accept-
ance of this *^ renunciation'' Great Britain reaflSrms. For this pur-
pose the word "renounce'' was introduced by the United States nego-
tiators, and with a knowledge of this purpose it was finally acceded to
by the British. It would have been easy to say, ** the British Govern-
ment grants to the United States the right to enter the northeastern
British waters for shelter, wood, and water; " and, if so, there would be
ground to argue, not merely that the war of 1812 had so far destroyed
the prior title as to make a new grant necessary, but that the title to
be thus granted was restricted by the limitations which are reganled as
attaching to all grants of sovereignty. The article just quoted, how-
ever, excludes such a contention. It points to the fisheries as held in
common by two sovereignties — the sovereignty of Great Britain and
the sovereignty of the United States. It declares, not that Great Britain
cedes any part of her sovereignty in the fisheries to the United States
(for the sovereignty of the United States it recognizes as existing in
tbc ^fisheries), but that the United States cedes certain incidents of
its sovereignty in these fisheries to Great Britain. The term << re-
nounce," as here used, is, it must be recollected, not merely a term of
law, with its distinctive legal meaniug, but it is a term invested by
history with certain incidents which the British negotiators would have
been among the first to remember and the last to dispute. <^ Eenounce "
had been the term used in numerous treaties in which Great Britain
had been a party, in which one sovereign surrendered a portion of his
rights to another sovereign, who, by accepting the renunciation, recog-
nized as valid all other rights to the territory out of which the portions
renounced were taken. Such renunciations are common when, after
war, one of the contending sovereigns agrees to give up a portion of
his title, such renunciation, with its correlative recognition of the re-
mainder of the title, being accepted by the other sovereign as part of
the bargain. (See supra, § 133.) We have illustrations of this in the
various renunciations in the treaties of Westphalia, of Byswick, of
Utrecht, in which it was never questioned that the <^ renunciation"
made by one sovereign and accepted by the other was a recognition
by the latter of the former's sovereignty as to the particular title,
claimed by him, except so far as concerns the part carved out by the
renunciation ; nor is there any doubt that the renunciation is, in such
cases, to be strictly construed in favor of the sovereign renouncing. To
the renunciation in the treaty of 1818 this rule is peculiarly applicable,
for the following reasons:
The British commissioners were aware of the American claim : —

(1) That the fisheries were conquered from France in a large measure
by the colonies.

(2) That they were held by the colonies in common with the x>arent
country, and that this tenancy in common, from the fact that the col-
onies were endowed at the time with distinct local government, made
Uie fisheries, in such tenancy, the appurtenances of the colonies as dis-
tinct political entities.

(3) That this tenancy in common was recognized by the treaty of peace
of 1783, and the same rights in the fisheries were assigned to the United
States (incorporating as they did the colonies) as were assigned to
Great Britain, the United States continuing to enjoy these fisheries in
common with Great Britain.

§ 304.] FISHERIES. [chap. XIIL

(4) That the tenancy of these fisheries, being an appurtenance of the
United States, constituting its marine boundaries (subject to such in|:er-
est of Great Britain), was no more disturbed by the war of 1812 than
were the land boundaries which separated the United States from the
British possessions, the rule being that war between two sovereigns
does not disturb their boundaries and appurtenances unless there be
an express cession in the pacification with which the war concludes
{supraj § 135).

(5) That the application in the treaty of peace of the doctrine of par-
tition to the fisheries was a part of a system the assertion of which was
then, in view of British interests in America, far more important to
Great Britain than to the United States.

This was the basis on which rested the claim of the United States at
the negotiations prior to the treaty of 1818. Those negotiations resulted
in a compromise which that treaty embodied. The United States gained
a recognition of a more extended area than that recognized by the treaty
of 17835 ^^®y renounced, on behalf of their fishermen, what they till
then possessed -*'any liberty heretofore enjoyed or claimed • • to
take, dry, or cure fish" within three marine miles of any of the coksts,
bays, creeks, or harbors of His Britannic Majesty's dominions in America,
not included within the above-mentioned limits; provided, however,
that the American fishermen shall be admitted to enter such bays or
harbors for the purpose of shelter, of repairing damages therein, and of
obtaining water, and for no other purpose whatever; with the further
proviso '^ that they shall be under such restrictions as shall be necessary
to prevent their taking or curing fish therein, or in any other manner
whatever abusing the privileges hereby reserved to them." Great
Britain, therefore, recognized their rights to the fisheries outside of the
three-mile belt, and within that belt recognized their territorial rights
as t»xisting prior to the revolution, the United States^ however, agree-
ing to place themselves under such restrictions as would *' prevent their
taking or drying or curing fish therein," or "abusing the privileges
hereby reserved to them." And the right of territoriality in Canada wa-
ters and shores thus recognized as existing in our fishermen brings with
it the incidents of such territoriality. They may purchase, as may any
other visitor to whom territorial rights are given, whatever is needed
for their use. They must not "abuse" these "privileges." They must
not smuggle, and what they buy must not be bought for the purpose of
shore fishing. In other words, the treaty is not a grant of fishenes by
Great Britain to the United States, but a grant by the United States to
Great Britain of certain restrictions on fisheries which the United States
already owned. Great Britain did not say to the United States, " Come
here only for shelter, wood, and water"; but the United States said to
Great Britain, "We, being here as tenants in common of these fisheries,
agree not to take, cure, or dry fish within certain limits, or otherwise
abuse the privileges hereby reserved to us."
Of similar rights of territoriality we have numerous illustrations :
(1) Diplomatic agents, by the law of nations, and sometimes by
treaty, possess certain rights of territoriality. This territoriality is re-
stricted ; yet it carries witi^ it all incidents to its enjoyment No one would
argue that a diplomatic agent, when entering on or conducting his mis-
sion, is obliged to bring with him food and raiment for his entire stay, and
is not permitted to buy new supplies when his original supplies are ex-
hausted. No one would argue that while on such mission he is precluded

CHAP. XIII.] NORTHEAST ATLANTIC. [§ 304.

from^isitiDg old or new friends^ or is debarred from any ordinary rights of
ciTiliied {inmanity. "No one will pretend that if he traversed the United
States in transit to another mission he would be precladed from making
in the United States all purchases suitable for such mission. The ter-
ritoriality granted to him brings with it all proper incidents, except when
expressly restricted. {Supra, §§ 92 ff).

(2) Of consuls the same position may be taken. By the law of nations
the limited territoriality granted to consuls has, in most countries, been
defined, as is the case with the territoriality recognized in fishermen, by
express treaty stipulations {8upra, §§ 120 ff). Consuls, for instance, in
certain treaties («. g,j that with France), are entitled to exercise certain
foDctions without being subject to be disturbed by the local law (supray
§§ 98, 120, 121). As if to emphasize this, and to prevent the commin-
gling of allegiances, it is provided in many treaties, and when not pro-
vided it is generally understood, that a consul is not to be a citizen of
the state to which he is accredited {aupraj § 113). But ifhile, as is the
ease with the fishermen under the treaty of 1818, this territoriality is
limited to the objects for which it is granted, in the one case as in the
other, it carries with it all privileges incidental to such objects. No one
disputes the right of consuls to purchase their supplies in the country
in which this territoriality is granted to them, although, as in the case of
the fishermen before us, while they can ^^ purchase,^ they cannot ^' take."

(3) The officers and crews of foreign ships of war have certain ter-
ritorial rights in our ports. They are privileged to the hospitality of
these ports ; they may visit the shore, as may our fishermen on the
Canada coasts, for specific purposes. Yet no one would pretend that
when they thus visit the shore they are not entitled to make such pur-
chases as are suitable, not merely for their immediate supply, but for
their use in any future cruise they may desire to undertake. In certain
portions of our coast, where fishing may be a pastime, it would be consid-
ered a strange thing to suggest that they could not buy bait on shore
for such a pastime because they might throw out their lines within the
three-mile zone. Be this as it may, there are few cruises on which a
British man-of-war may expect to enter in which fishing may not be-
come merely a pastime, but a useful means of obtainipg fresh food. No
one would imagine, however, that becanse the United States forbids the
intrusion of foreign fishermen within its marine belt it would say to
officers of British men-of-war to whom it grants the privilege of terri-
toriality in its ports, <^ When you are on shore you must not buy bait, be-
cause fishing within three miles of the coast is forbidden." Yet buying
bait is not a necessary incident to the life of the navy officer in whom
the privilege of territoriality is recognized by international law if not by
treaty, though it is a necessary incident to the life of the fishermen in
whom the privilege of territoriality is recognized by the treaty of 1818.
And this brings us again to the general proposition that a grant of terri-
toriality for a specific purpose carries with it all the privileges incidental
to the due exercise of such territoriality.

(4) Territorial rights in the United States given by treaty to British
subjects have been regarded as carrying with them the necessary inci-
dei»ts in like manner as those now claimed as belonging to United States
fishermen when in Canada.

Bv Article III of the treaty of Great Britain and the United States
of 1794—

'* It is agreed that it shall at all times be free to His Majesty's subjects
and to the citizens of the United States, and also to the Indians dwcU-

S. 3ri.s. 162— VOL. ni 4 ^®

^ 304.] FISHERIES. [chap. XIII.

of the voyage. The statute 3 aod 4 Vict, c. 65, s. 6» gives the Admi-
ralty Court jurisdiction to decide ^^ all claims and demands whatsoever

• • • for necessaries supplied to any foreign ship or seorgoing vessel,^
In The Riga (L. E. 3 Ad. and Ec.,516, 522), Sir B. Phillimore said : "I
am unable to draw any solid distinction (especially since the last stat-
ute) between necessaries for the ship and necessaries for the voyage.

• • • I am of opinion that whatever is fit and proper for the serv-
ice on which a vessel is engaged, whatever the owner of that vessel, as
a prudent man, would have ordered if present at the time, comes within
the meaning of the term 'necessaries' as applied to those repairs done
or things provided for the ship by order of the master, for which the
owners are liable." Under this ruling obtaining supplies necessary for
the continuance of the voyage would be obtaining '< necessaries," and^
a fortiori^ "repairing damages."

The usage, also, of buying, by American fishermen, of bait and other
necessary supplies in British North American ports has been unbroken,
and such usage is regarded by English courts as authoritative in such
cases.

See remarks of Cbambre, J., in FenniDgsr.GrenvUle, 1 Tannt., 248.

Careful search has failed to supply a single case in which British
courts have sustained the confiscation of American fishing vessels on
the ground of purchase of supplies in Canadian ports. Yet, as is shown
in the proceedings of the Halifax Commission, the running, by Ameri-
can fishing vessels, into Canadian ports to obtain supplies has been in
conformity with ancient usage ^ a usage which still continues ; and thi»
usage is recognized in the Canadian adjudications hereafter noticed.

'' Almost the very last witness we had on the stand told your honors that before th»
reciprocity treaty was made we were buying bait in Newfoundland, and several wit-
nesses from time to time have stated that it is a very ancient practice for us to buy
bait and supplies and to trade with the people along the shore, not in merchandise a»
merchants, but to buy supplies of bait and pay the seUers in money or trade, as might
be mo8t convenient. Now, that is one of those natural trades that grow up in all
countries; it is older than any treaty; it is older than civilized states or statutes.
Fisheries have but one history. As soon as there are places peopled with inhabitauta
fishermen go there.''

Mr. Dana, Halifax Com., 1573.

In the White Fawn case, as cited at large in 3 Halifax Com., 3382, Judge Hacei^
(vice-admiralty court) said: "The construction sought to be put upon the statutes
by the Crown officers would appear to be thus : A foreign vessel being in British wa-
ters and purchasing from a British subject any article which may be used in prose-
cuting the fisheries, without its being shown that such article is to be used in iUegal
fishing in British waters, is Uable to forfeiture as preparing to fish in British waters.
I cannot adopt such a construction. I think it harsh and unreasonable and not war-
ranted by the words of the statutes. It would subject a foreign vessel, which might
be of great value, as in the present case, to forfeiture, with her cargo and outfit, for
purchasing (while she was pursuing her voyage in British waters, as she lawfully
might do, within three miles of our coast) of a British subject any article, however
small its value (a cod line or net, for instance), without its being shown that there
was any intention of using such articles in illegal fishing in British waters before she
reached the fishing ground to which she might legally resort for fishing under the
terms of the statutes. I construe the statutes simply thus : If a foreign vessel i»
found, 1st, baviug taken fish ; 2d, fishing, although no fish have been taken ; 3<l, pre-
paring to fish, {. e., with her crew arraugiug her nets, lines, and fishing tackle for
Aahingg though not actually applie<l to fishing in British waters, in either of theAo-
apeoJUed iiftbe atatutea the forfeiture attMhea. I think the words * preparing

CHAP. Xra.] NOBTHEAST ATLANTIC. [$ 304,

to fish' (in the statu ted) were intxodoced for the purpose of proTenting the escape of
a foreign vessel which, though with intent of illegal fishing in British waters, had
not taken fish or engaged in fishing hy setting nets and lines, but was seized in the
▼ery act of pntting out her lines, nets, etc., into the water, and so preparing to fish."
This opinion is yalaable merely as an aathority that buying bait in the three-mile
looe is not by itself held illegal in the Canada waters. So far as the statute con-
stnied expands the operation of the treaty it has no extraterritorial force.

The opinion in the case of the J. H. Nickerson, by Sir William Toung (Tice-admi-
nlty, Halifax, 1871), contains a dictum that ''to purchase or procure bait'' is " a
preparing to fish." This, to say the least, is badly put, since '' procuring" includes

"catching/' which would not only be *' preparing to fish," but actually ''fishing."

Bot, aside from the badness of the phraseology, the law of the proposition is bad.
is "preparing to commit a crime" is an indictable attempt, there are many cases in

which, sometimes by very able Judges, the question has been determined in what
fQch preparation consists. These cases establish the principle that unless the prep-
tratiou be such that if not interrupted by extraneous force it would result in the
crime alleged, it is not an indictable attempt ; and it is a settled principle that pur-
chasing poison or a deadly weapon is not indictable as a " preparation " for homicide.
(See cases cited in Whart. Cr. Law $ 180.) The reason is that where a thing pur-
chased can be used either for a lawfui or an unlawful purpose there can be no con-
Tiction of an attempt unless the unlawful purpose be shown. In the case here cited
thrre ought to have been no conviction, even under the statute, unless it conid have
been shown that the purchase was a preparation to fish within the forbidden belt,
aod that thi£ was put in process of execution. Sir W. Young's dictum on this point,
therefore, cannot be sustained as a matter of municipal law. As a ruling of intema-
tiooal law it is of no authority, since preparing to fish without fishing is in any view
not a contravention of the treaty of 1818. But Sir W. Young's ruling, on the merits,
ooiDcides with that of Judge Hazen, since he concedes that merely buying fish within
the three miles is not a violation of the treaty.

Id the Halifax Commission it was asserted, as part of the British case, that "freedom
to transfer cargoes, to outfit vessels, buy supplies, obtain bait, and traffic generally
in British ports and harbors, or to transact other business ashore, not necessarily
connected with fishing parxnits, are secondary privileges which materially enhance
the principal concessions to United States citizens. These advantages are indispen-
sftble to the success of foreign fishing on Canadian coasts; without such facilities,
fishing operations, both inside and outside of the inshores, cannot be conducted on
aa extensive and reiiinnerative scale." The commission, however, in discharge of the
doty assigned to it of determining the balance of indebtedness between the two powers
on the fishery question, unanimously decided that *' it was not within the competence
of this tribunal to award compensation for commercial intercourse between the two
countries, nor for purchasing bait, ice, supplies, etc., nor for permission to transship
eargoes on British waters." As the submission in this case covered all cases of claims
by either power, the only basis on which this decision can stand is the privileges thus
exercised which were secured to them by treaty as well as by the law of nations; for
on both sides it was agreed that these privileges were valuable. We must, therefore,
understand that the commission — a tribunal the migority of which cannot be charged
with undue partiality to the United States— held that the enjoyment of these privileges
by fishermen of the United States was a matter of righ t. The claim in the British argu-
ment, it must be recollected, was put on strong grouQd : " In all those instances where
it has come oat io evidence that they (the United States fishermen) come in and get
cor fishermen to catch bait foe them and pay them for doing so, in all such cases the
act is that of the United States fishermen themselves." (Halifax Com., 1556.) Yet
eren for acta ancb as these, verging so closely on fishing within the three-miles zone,
the Halifax tribunal held that the British Government, acting for itself and for Can-
ads, had DO cause for complaint.

§ 304] FISHERIES. [chap. XHI.

"At the fint coufcrcnce (of the Ghent neG:otiator8)| on the 8th of Angast (1814), the
British plenipotentiaries had notified to us that the British GoTernment did not in-
tepd henceforth to allow to the people of the United States, without an equivalent,^
the liberties to fish, and to dry and cure fish, within the exclusive British Jurisdis-
tion stipulated in their favor by the latter part of the third article of the treaty of
peace of 1783; and in their note of the 19th of August the British plenipotentiaries
had demanded a new stipulation to secure to British subjects the right of navigating
the Mississippi, a demand which, unless warranted by another article of that same
treaty of 17&), we could not perceive that Great Britain had any colorable pretext for
making. Our instructions had forbidden us to suffer our right to the fisheries to be
brought into discussion, and had not authorized us to make any distinction in the
several provisions of the third article of the treaty of 1783, or between that article
and any other of the same treaty. We had no equivalent to offer for a new recogni-
tion of our right to any part of the fisheries, and we had no power to grant any equiva-
lent which might be asked for it by the British Government. We cont'Cnded that the
whole treaty of 1783 must be considered as one entire and permanent compact, not
liable, like ordinary treaties, to be abrogated by a subsequent war between the par-
ties to it; as an instrument recognizing the rights and liberties enjoyed by the people
of the United States as an independent nation, and containing the terms and condi-
tions on which the two parts of one empire had mutually agreed thenceforth to con-
stitute two distinct and separate nations. In consenting, by that treaty, that a part
of the North American continent should remain subject to the British Jurisdiction, the
people of the United States had reserved to themselves the liberty, which they had
ever before enjoyed, of fishing upon that part of the coasts, and of drying and curing
fish upon the shores ; and this reservation had been agreed to by the other contract-
ing party. We saw not why this liberty, then no new grant, but a mere recognition
of a prior right always enjoyed, should be forfeited by a war any more than any other
of the rights of our national independence, or why we should need a new stipulation
for its enjoyment more than we needed a new article to declare tha^- the King of Great
Britain treated with us as free, sovereign, and independent States. We stated this
principle, in general terms, to the British plenipotentiaries, in the note which we sent
to them with our project of the treaty ; and we alleged it as the ground upon whicb
no new stipulation was deemed by our Government necessary to secure to the people
of the United States all the rights and liberties stipulated iu their favor by the treaty
of 1783. No reply to that part of our note was given by the British plenipotentia-
ries; but, in returning our project of a treaty, they added a clause to one of the arti-
cles stipulating a right for British subjects to navigate the Mississippi. Without
adverting to the ground of prior and immemorial usage, if the principle were Just
that the treaty of 1783, from its peculiar character, remained in force in all its parts,,
notwithstanding the war, no new stipulation was necessary to secure to the subjecte
of Great Britain the right of navigating the Mississippi, as far as that right was se-
cured by the treaty of 1783 ; as, on the other hand, no stipulation was necessary te
secure to the people of the United States the liberty to fish, and to dry and cure fish,
within the exclusive Jurisdiction of Great Britain. If they asked the navigation of
the Mississippi as a new claim, they could not expect we should grant it without an
equivalent ; if they asked it because it had been granted in 1783, they must recog-
nize the claim of the people of the United States to the liberty to fish, and to dry
and cure fish, in question. To place both points beyond all future controversy, a
majority of us determined to offer to admit an article confirming both rights, or we
offered at the same time to be silent in the treaty upon both, and to leave out alto-
gether the article defining the boundary from the Lake bf the Woods westward. They
finally agreed to this last proposal, but not until they had proposed an article stipu-
lating for a future negotiation for an equivalent to be given by Great Britain for the
navigation of the Mississippi, and by the United States for the liberty as to the fish-
eries within the British JuriMliction. This article was unnecessary, with respect to

CHAP. XIII.] NORTHEAST ATLANTIC. [§ 304

its professed object, since both Governujciits bad it in their power, without it, to iie-
gotiate upon these sabJiBccts, if they pleased. We rejected it, although its adaption
would have secured the boundary of the forty-ninth degree of latitude west of. the
Lake of the Woods, because it would have been a formal abandonment on oni jiart of
our claim to the liberty as to the fisheries recognized by the treaty of 17^*3.

*^ Yon will perceive by the correspondence that the ninth article was offered us as a
file 91UI non and an ultimatum. We accepted it, not without mnch hesitation, as the
only alternative to a rupture of the negotiation, and with a i>erfect understiinding
that our Government was free to reject it, as we were not authorized to subscri be to it.''

Letter of the Am. plenip. to Sec. of State, Ghent, Deo. 25, 1814, given in The
Fisheries and the Mississippi, 54^.

^'The principle (that of the continuous right of the United States to the northeast-
em fisheries and the non- abrogation of these rights by the war of 1812) asserted by
the American plenipotentiaries at Ghent has been still asserted and maintained
through two long and arduous negotiations with Great Britain, and has passed the
ordeal of minds of no inferior ability. It has terminated in a new and satisfactory
arrangement of the great interest connected with it, and in a substantial admission
of the principle asserted by the American plenipotentiaries at Ghent."

Mr. J. Q. Adams, The Fisheries and the Mississippi, 97, 98.

''In that instrument (the treaty of 1818) the United States have renounced forever
that part of the fishing liberties which they had enjoyed or claimed in certain parts
of the exclusive jurisdiction of the British provinces, and within three marine miles
from the shore. This privilege, without being of much use to our fishermen, had
been found very inconvenieDt to the British, and in return we have acquired an en-
larged liberty, both of fishing and of drying fish, within the other parts of the British
jarudiction forever. The first article of the convention affords a signal testimonial
of the correctness of the principle assumed by the American plenipotentiaries at
Ghent ; for, by accepting the express renunciation of the United States of a small
portion of the privilege in question, and by confirming and enlarging all the re-
mainder of the privilege farecer, the British Government have implicitly acknowl-
edged that the liberties of the third article of the treaty of 1783 had not been abro-
gated by the war. * * * It is not the word forever in this convention which will
secure to our fishermen for all time the liberties stipulated and recognized in it, but
it was introduced by our negotiators and admitted by those of Great Britain as a
warning that we shall never consider the liberties secured to us by it as abrogated by
mere war. * • * They and we are aware forever that nothing but our oum renun-
ciation can deprive us of this right.''

Ibid, 109.

** The nature of the rights and liberties consisted in the free participation in Skfleh-
ery. That fishery, covering the bottom of the banks which surround the island of
Kewfonndland, the coasts of New England, Nova Scotia, the Gulf of Saint Lawrence,
and Labrador, furnishes the richest treasure and the most beneficent tribute that
ocean pays to earth on this terraqueous globe. By the pleasure of the Creator of
earth and seas, it had been constituted in its physical nature one fishery, extending in
the open seas around that island, to little less than five degrees of latitude from the
eoast, spreading along the whole northern coast of this continent and insinuating
itaelf into all the bays, creeks, and harbors to the very borders of the shores. For
the full enjoyment of an equal share in this fishery if was necessary to have a nearly
general access to every part of it, the habits of the game which it pursues being so
far migratory that they were found at different periods most abundant in different
places, sometimes populating the banks -and at others swarming close upon the shores.
The latter portion of the fishery had, however, always been considered as the most

5")

§ 304.] FISHERIES. [chap. XIH.

▼alnable, iniMmach as it afforded the means of drying and curing the fish immediately
after they were canght, which conld not be effected upon the banks.

*' By the law of nature this fishery belonged to the inhabitants of the regions in the
neighborhood of which it was situated. By the conyentional law of Europe it be-
longed to the European nations which had formed settlements in those regions.
France, as the first principal settler in them, had long claimed the exdnHve right to
it. Great Britain, moved in no small degree by the value of the fishery itself. Lad
made the conquest of all those regions upon France, and had limited by treaty, within
a narrow compass, the right of France to any share in the fishery. Spain, upon some
claim of prior discovery, had for some time enjoyed a share of the fishery on the
bauks, but at the last treaty of peace prior to the American Revolution had expressly
renounced it.

''At the commencement of the American Revolution, therefore, this fishery belonged
exclusively to the BritM naiionf subject to a certain limited participation in it reserved
by treaty stipulations to France."

Ihid,, 184.

<' The most important matter adjusted at this negotiation (that of 181H) was the
fisheries. The position assumed at Ghent, that the fishery rights and liberties were
not abrogated by war, was again insisted on, and those portions of the coast fisheries
relinquished on this occasion were renounced by express provision, fully implying
that the whole right was not considered a new grant."

2 Lyman's Diplomacy of the U. S., 88.

** During the conferences which preceded the negotiation of the con-
vention of 1818, the British commissioners proposed to expressly ex-
clude the fishermen of the United States from 'the privilege of carrying
on trade with any of bis Britannic Majesty's subjects residing within
the limits assigned for their use ; ' and also that it should not be 'lawful
for the vessels of the United States engaged in said fishery to have on
board any goods, wares, or merchandise whatever, except such as may
be necessary for the prosecution of their voyages to and from the said
fishing grounds ; and any vessel of the United States which shall con-
travene this regulation may be seized, condemned, and confiscated with
his cargo.'

" This proposition, which is identical with the construction now put
upon the language of the convention, was emphatically rejected by the
American commissioners, and thereuiK)n was abandoned by the British
plenipotentiaries, and Article I, as it stands in the convention, was sub-
stituted."

President Grant, Second Annual Message, 1870.

On the subject of the Northeastern fisheries generally see the following Congres-
aioual documents :

Articles of the treaty of 1871 with Great Britain. Resolution of Massachusetts
favoring their abrogation. Feb. 28, 1879. Senate Mis. Doc, 80, 45th Cong.,
3d sees.

Abrogation of the fishery articles of the treaty of May 8, 1671, with Great Britain
recommended. Apr. 28, 1880. House Rep. 1275, 46th Cong., 2d sess.

Recommendation that duties be reira posed upon fish and fish oil, the product of
Canada, as British Government insists that local laws are superior to stipu-
lation of treaty of 1871. President's message. May 17, 1880. Senate £x.
Doc. 180, 46th Cong., 2d sess.

Provisions of the treaty of May 8, 1871, with Great Britain. Report in favor of
payiuff damages sustained by American fishermen on account of the acts of
50

CHAP. XUL] northeast ATLANTIC. [§ 304.

the people of Newfoundland and the abrogation of the treaty. June 9, 1880.

Hooae Rep. 1746, 46th Cong., 2d sese.
Certain proTisions of the treaty of Washington on. Report that they be termi-
nated. Feb. 4, 1882. Honse Rep. 235, 47th Cong., let sees.
Protection of, in waters of United States and Canada. Resolation of Vermont

fkvoring legislation for that pnrpose. Jan. 15, 1877. Senate Mis. Doc. 28,

44th Cong., 2d sees.
Protection of, on Atlantic coast. Proposed legislation not antagonistic with

treaty obligations with Great Britain. Mar, 24, 1884. Senate Rep. 365,

48th Cong., 1st sees.
As to Canada fisheries in general, see Senate Ex. Doc. No. 100, 32d Cong., Ist sess.
On Sir £. Thornton's proposal of a fisheries commission, and in relation to the

Alabama claims, see Mr. Fish^ Sec. of State, to Mr. Thornton, Jan. 30,

1871. For. Rel., 1871, 497. .

On the subject of the negotiations attending the treaty of 1818, the following docn-
ments may be consulted :

Message of President Monroe, Feb. 18, 1825, with papers as to 'Hhe captnre and
detention of American fishermen during the last season.'' Huuse Doc. 405,
18th Cong., 2d sess. 5 Am. St. Pap. (For. Rel.), 675.

Letter of Mr. Rush to Mr. Monroe, Oct. 22, 1818, Monroe Pap. See also in same,
important argument of Mr. Rodney, Nov..4, 1818, in same collection.

Mr. Rush's dispatch to Mr. J. Q. Adams, Sec. of State, of July 2Ht 1823, narrating
the incidents of the then closing negotiations with the- British ministry, is
giren in Senate. Ex. Doc. No. 396, 18th Cong., 2d sess. 5 Am. St. Pap. (For.
Rel.), 529. See ibid., 548, 580, as to passages in respect to Newfoundland
fisheries.

Mr. Gallatin's dispatch to Mr. J. Q. Adams, Nov. 6, 1818. 2 Gallatin's Writings, 82.

As to course of commissioners at Ghent, in respect to the fisheries, see Mr. Gal-
latin to Mr. Monroe, Dec. 25, 1814. 1 Gallatin's Writings, 345. See further,
1 Philli. Int. Law (3d ed.), 270.

In the British and Foreign State Papers for 1818-'19, vol. 6, p. 69^., will be found
the proceedings of the commissioners by whom the treaty of 1818 was
negotiated.

(5) UKDEB Tins TRBATIXS OF 1783 AND 1812 THE THREE MILES BELT FOLLOWS THE

8IKC08ITIX8 AKD INDENTATI0K8 OF THE COAST.

§305.

The general doctrine of the law of nations as to marg^ial seas Las
been already discussed {mpraj § 32). That territorial jarindiction over
the North East Atlantic is limited to three miles, following the sinuosities
and indentations of the coast, is shown by the action of the British and
United States Governments under the treaties of 1783 and of 1818. As
in some aspects this question may become the matter of future negotia-
tions, the publication in the present shape of a summary of the corre-
epoodence in this relation is deferred.

(6) Bat of Fxtndt akd otreb laboe bats abb open seas.

§305a.

On November 30, 1815, Lord Stanley, then British Colonial Secretary,
after saying that " Her Majesty's Government feel satisfied that the
Bay of Fundy has been rightly claimed by Great Britain as a bay within

§§ 305, 305a.] fisheries. [chap. xiii.

the treaty of 1818," but that the " relaxation of this claim would be at-
tended with benefits,'' etc., declares that *'it has accordingly been an-
nounced to the United States Government that American citizens would
henceforward be allowed to fish in any part of the Bay of Fundy, pro-
vided they do not approach, except in cases specified in the treaty of
1818, within three miles of the entrance of any bay on the coast of Nova
Scotia or New Brunswick."

As to meaning of the word ^< bay, " in the convention of 1818, Mr.
Cass, in his speech in the Senate on August 3, 1852, after showing that
there are ^'bays'' (e. ^., Bay of Biscay, Baifin's Bay, etc.) which are
really open seas, proceeds to notice that the <' bays" specified in the
convention are of another class, being grouped with <' harbors and
creeks," and are convertible, not with such seas as the Bay of Biscay
or the Bay of Fandy, but simply with indentations of the coast into
which fishing vessels are accustomed to run. ^'That such was the un-
derstanding of our negotiators is rendered clear by the terms they em-
ploy in their report upon this subject. They say: ^It is in that point
of view that the privilege of entering the ports for shelter is useful,' etc.
Here the word Sports' is used as a descriptive word, embracing both
the bays and harbors within which shelter may be legally sought, and
shows the kind of bays contemplated by our framers of the treaty. And
it is not a little curious that the legislature of Nova Scotia have applied
the same meaning to a similar term. An act of that province was
passed March 12, 1836, with this title : ^An act relating to the fisberies
in the province of Nova Scotia and the coasts and harbors thereof/
which act recognizes the cx)nvention, and provides for its execution un-^
der the authority of an imperial statute. It declares that harbors shall
include bays, ports, and creeks. Nothing can show more clearly their
opinion of the nature of the shelter secured to the American fishermen.'^

Congreeslonal Globe (Appendix), yoI.,25, 895.

In a speech of the same date Mr. Hamlin said : ^' The bays and har-
bors which are surrendered up by the Americans are the bays and harbors
into which theAmerican fishermen may go to find a, shelter j repair daina^es^
purchase wood, and obtain water. All these things could only be done
in the small harbors, which would afford shelter, and where damage
could be repaired. But to allow fishermen to go into the Gulf of St.
Lawrence or the Bay of Fundy for repair or shelter I They might with
far greater propriety seek the open sea for shelter, for with sufficient sea
room they might be safe, while in such bays as the Bay of Fundy they
would be sure of destruction upon a lee shore. Better, far better, to seek
the broad and trackless ocean for a shelter, to repair, for wood, or water.
The very uses to which these bays and harbors are to be appropriated
must show what was intended — such harbors and bays as could be
used for the purposes named. The same interpretation of the word bay
in the treaty, when applied to Fundy, Ohaleur, or St. Lawrence, should
be understood as when applied to the Bay of Biscay or the Gulf of
Mexico."

Ihidy 900.

The right of United States fishermen to enter and fish in the Bay of
Fundy was *' decided by arbitration in the case of the sehooner Wash-
ington, and Her Majesty's Government have uniformly acquiesced in
that decision."

Mr. Foster, Halifax Com., 1590.
58

CHAP. Xni.] NORTHEAST ATLANTIC. [§ 305a.

Ab to the Bay of Chalenr, in its proper sense, conflicts as to fishiDg, Judging from
the eTidenoe before the Halifax tribunal, are not likely to arise. In the old popular
use of the title it is not, outside of the three-mile band, territorial water. *' A good
deal of fisotittons importance has been given to the Bay of Chaleur from the custom
among fishermen, and almost uniTersal a generation ago, of which we have heard so
much, to speak of the whole of the Gulf of Saint Lawrence by that term."
Hid.

''What men on the face of the earth have a better right to plow with their keels
the waters of the Gulf of Saint Lawrence than the descendants of the fishermen of
Kew England, to whose energy and bravery, a century and a quarter ago, it is chiefly
owing that there is any Nova Scotia to-day under the British flag T "

IHd,, 1591.

A oonstmction of the terms " coasts, bays, creeks, or harbors," in the treaty of 1818,
was given by the mixed commission under the convention of 1853, in the case of the
United States fishing schooner Washington, which was seized while fishing in the
Bay of Fnndy, ten miles from shore, taken to Yarmouth, Nova Scotia, and adjudged
forfeited, on the charge of violating the treaty of 1S18 by fishing in waters in which
the United States had, by that convention, renounced the right of its citizens to take
fish. A claim of the owners of the Washington for compensation came before the
commission above mentioned, and, the commissioners differing, the case was referred
to Mr. Joshua Bates, the umpire, who, referring to the theory that *' bays and coasts"
were to be defined by ''an imaginary line drawn along the coast from headland to
headland, and that the Jurisdiction of Her Majesty extends three marine miles outside
of this line, thus closing all the bays on the coast or shore and that great body of
water called the Bay of Fnndy," pronounced it a ''new doctrine," and, repudiating
the decision of the provincial court based thereon, awarded the owners of the vessel
compensation for an illegal condemnation. The umpife also decided that as the Bay
of Fundy is from sixty-five to seventy-five miles wide, and from one hundred and
thirty t4> one hundred and forty miles long, with several "bays" on its coasts, and
has one of its headlands in the United States, and must be traversed for a long dis-
tance by vessels bound to Passamaquoddy Bay, and contains one United States island.
Little Menan, on the line between headlands, the Bay of Fundy could not be consid-
ered as an exclusively British bay. (See President's message communicating pro-
ceedings of commission to Senate; also Dana's Wheaton, $ 274, note 142.) The
" headland " theory was again rejected by the umpire in the case of the schooner
Argus, which was seized while fishing on Saint Ann's Bank, twenty-eight miles fronk
Cape Smoke, the nearest land, taken to Sydney, and sold for violation of the treaty
of 1818 by fishing within headlands. The owners were awarded full compensation.

Mr. Dana, in this connection, quotes (Dana's Wheat., $ 274, note 142) from the treaty
between Great Britain and France of 1839 the following provisions : ' ' It is agreed that
the distance of three miles, fixed as the general limit of the exclusive right of fishing
upon the coasts of the two countries, shall, with respect to bays, the mouths of which
do not exceed ten miles in width, be measured from a straight line drawn from head-
land to headland."

As to British concession that the Bay of Fundy is an open sea, see papers
connected with message of President Fillmore, Feb. 28, 1853, with Senate
Confid. Doc. No. 4, special session, 1853, and see particularly Mr. Everett,
Sec. of State, to Mr. IngcrsoU, Dec. 4, 1852, MSS. Inst. Gr. Brit., appended
to message aforesaid.

As to detention of fishermen in the Bay of Fundy, see President Monroe'^s
message of Feb. 26, 1825; House Doc. No. 408; 18th Cong., 2d sess. ; 5 Am.
St. Pap. (For. Rel.), 735.

Mr. Rush's notes of negotiation, Monroe papers, Dept. of State.

§§ 306, 307.] FISHERIES. [chap, xiil

'* To the daase aboat Hadson's Bay we did not object, ae, on examining the charter
to that company, which we did, it was clear that we shoold still fish as before the
Bevolation."

Mr, Bosh's notes of negotiation, Monroe papers, Dept. of State, conference of
Oct. 19.

<7) Ports of kmtrt not atfscted bt uMrrATioNS difossd bt trxatt of 1818.

§30G.

Whatever may be the Umitations of the treaty of 1818 as to trading
by fishermen in the British possessions bordering on the fisheries, they
do not apply to ports of entry in which fishing vessels, if having proper
papers, can enter for commercial purposes. On the other hand^ no
British municipal regulations as to ports of entry can affect, so far as
•concerns the United States, the right of fishermen, under treaties and
under the law of nations, to*vi8it ports, bays, and harbors of that coast
to obtain shelter, wood, and water, and to obtain provisions and sup-
plies in the exercise of the territorial privileges they thus possess.

<8; British municipal legislation may restrict, but cannot expand, British

rights under these treaties.

I 307.

It is conceded that there is no British legislation making it penal for »
United States fishermen to purchase bait or supplies on Canadian shores
when visiting them in pursuance of their rights as confirmed by this
treaty. This, as has been said {swpra^ § 304), is a cotemporaueons con-
struction of the treaty, since the statutes go back to the i)eriod when the
treaty was framed. But in the aspect of the present section the statutes
may be regarded as a statutory statement of treaty rights in this connec-
tion, whatever these rights might be. The British Government, with
whom exclusively the United States has to deal in this matter, pre-
49cribes by statute that the seizures under the treaty of 1818 are to be
only for certain specified causes, among which buying provisions is
not included. And the rule is well settled, that while a municipal law
cannot expand an international right, it may so contract it for municipal
purposes that municipal prosecutions under it can only be brought in
submission tx) the statutory terms.

^^ If, however, it be said that this claim (to exclude United States
fishermen from these rights) is founded on provincial or colonial stat-
utes, and not upon the convention, this Government cannot but regard
them as unfriendly, and in contravention of the spirit, if not of the letter,
of the treaty, for the faithful execution of which the imi^erial Govern-
ment is alone responsible.

'^Anticipating that an attempt may possibly be made by the (3anadian
authorities in the coming season to repeat their unneighborly acts to-
ward onr fishermen, I recommend you to confer upon the Executive
the power to suspend, by proclamation, the operation of the laws author-
izing the transit of goods, wares, and merchandise in bond across the
territory of the United States to Canada ; and, further, should such an
extreme measure become necessary, to suspend the operation of any

§ 309.] FISHERIES. [chap. XIH.

incladed coinpeDsation for iDJuries safifered by our fisLermen at Aspee
Bay, there has been retained from tlie gross award a sum which is
deemed adequate for those claims."

President Arthur, First Annual Message, 1881.

The settlement is detailed in instmctions from Mr. Blaine, Sec. of State, to
Mr. Lowell, July 30, 1881, where Great Britain's responsibility in snch
cases is farther asserted.

As to Halifax Fishery Commission see farther, Appoiutmen of third commis-
sioner. President's message March 21, 1878, Senate Ex. Doc. 44, 45th Cong.,
2d sees. President's message May 17, 1878, Honse Ex. Doc. 89, 45th Cong.,
2d sess. Appointment of Manrice Delfosse as third commissioner. Presi-
dent's message Jane 17, 1878, Senate Ex. Doc 100, 45th Cong., 2nd sess.
Alleged frauds in the proofs before, Feb. 22, 1881, Honse Rep. 329, 46th Cong.,
3d sess. Resolution approving the report of the Committee on Foreign Re*
lations. May 28, 1878, Senate Mis. Doc. 73, 45th Cong., 2d sess. Award.
Report in favor of its payment. May 28, 1878, Senate Rep. 439, 45th Cong.,
2d sess.

For Mr. Evaris' criticism of action of Halifax award, see Mr. Evarts, Sec. of
State, to Mr. Welsh, Sept. 27, 1878. MSS. Inst., Or. Brit.

III. BY PURCHASE OF ALASKA THE UNITED STATES IS ENTITLED TO
THE JOINT RIGHTS OF RUSSIA AND OF THE UNITED STATES IN THE
NORTHWESTERN PACIFIC.

309.

The conditions of the purchase of Alaska, and the nature of the con-
troversy between the United States, Great Britaiu, and Russia, in refer-
euce to the Northwestern Pacific, as settled by the conrention of 1824
between Enssia and the United States, are considered in prior sections.

Supra, JJ 27, 33, 159.

See also Mr. . Forsyth, Sec. of State, to Mr. Dallas, May 4, 1837. MSS. Inst.,

Russia.
As to coDstraction of convention, see same to same, Kov. 3, 1837.

It is sufficient here to state that the joint rights of Russia and of the
United States to those waters are now held by the United States.

As to fisheries in Alaska, see Senate Ex. Doc. 50, 40th Cong., 2d sess.

Mr. Cutts' report on the commerce in the products of the sea, and other papers

connected with fishing grounds on the North Pacific, are given in Senate

Ex. Doc. 34, 42d Cong., 2d sess.
As to correspondence as to admission of British. Colnmhian fish under treaty of

1871, see Brit, and For. St. Pap. 1874-75, vol. 66.

CHAPTER XIV.

OUAVO ISLANDS.

L TrruB in uttebnational law. *

Baaed on diacovery, $ 310.
n. Title ukdkr United States statute.

(1) DiscoTery of gnano deposits gives title, i 311.

(2) Aves Islands, i 312.

(3) Loboa Islands, $ 313.

(4) Other islands, $ 314.

I. TITLE IN INTERNATIONAL LAW.

Based on discoyebt.

§310.

As bas been already stated, title to territory, whether insalar or con-
tiDental, in America, is based on discovery or conquest, and not on trans-
fer from the aborigines.

Supra, ($ 2, 3, 200.

II. TITLE VNDEE UNITED STATES STATUTE,
(1) Discovery of guano deposits gives title.

§ 311.
The Revised Statutes of the United States provide as follows :

Ssc. 5570. Whenever any citizen of the United States discovers a deposit of guano
on any island, rock, or key, not within the lawful jurisdiction of any other Govern-
ment, and not occupied by the citizens of any other Government, and takes peaceable
poneasion thereof, and occupies the same, such island, rock, or key may, at the dis-
cretion of the President, be considered as appertaining to the United States.

Sec. 5571. The discoverer shall, as soon as practicable, give notice, verified by affi-
davit, to the Department of State of such discovery, occupation, and possession, de-
tcribing the ialand, rock, or key, and the latitude and longitude thereof, as near as
may be, and showing that such possession was taken in the name of the United States;
and shall furnish satisfactory evidence to the State Department that such island, rock,
or key was not, at the time of discovery thereof, or of the taking possession and occu-
pation thereof by the claimants, in the possession or occupation of any other Govern-
ment or of the citizens of any other Government, before the same shall be considered
as appertaining to the United States.

Sec. 5572. If the discoverer dies before perfecting proof of discovery or fully com-
plying with the provisions of the preceding section, his widow, heir, executor, or
administrator, shall be entitled to the benefits of such discovery upon complying with

§ 311.] GUANO ISLANDS. [CIIAP. XIV.

the proTiflions of this title; bat nothing herein shall be held to impair any rights oi
discovery or any assignment by a discoverer heretofore recognized by the United
States.

Sec. 5573. The discoverer, or his assigns, being citizens of the United States, may
be allowed, at the pleasure of Congress, the ezoloslTe right of oconpying such island,,
rocks, or keys, for the purpose of obtaining guano, and of selling and delivering the
same to citizens of the United States, to be used therein, and may be allowed to-
charge and receive for every ton thereof delivered alongside a vessel, in proper tubii,
within reach of ship's tackle, a sum not exceeding $8 per ton for the best quality, or
$4 for every ton taken while in its native place of deposit.

Sec. 5574. No guano shall be taken fh>m any such island, rock, or key, except for
the use of the citizens of the United States or of persons resident therein. The dis-
coverer, or his widow, heir, executor, administrator, or assigns, shall enter into bond,
in such penalty and with such sureties as may be required by the President, to deliver
the guano to citizens of the United States, for the purpose of being used therein, and
to none others, and at the price prescribed, and to provide all necessary facilities for
that purpose within a time to be fixed in the bond ; and any breach of the provisions
thereof shall be deemed a forfeiture of all rights accruing under and by virtue of thia
title. This section shall« however, be suspended in relation to all persons who have
complied with the provisions of this title, for five years from and after the fourteenth
day of July, eighteen hundred and seventy-two.

Sec. 5575. The introduction of guano from such islands, rocks, or keys, shall be reg-
ulated as in the coasting trade between different parts of the United States, and the
same laws shall govern the vessels concerned therein.

Sec. 5576. All acts done, and offenses or crimes committed, on any such island, rock,
or key, by persons who may land thereon, or in the waters adjacent thereto, shall be
deemed committed on the high seas, on board a merchant ship or vessel belonging to
the United States, and shall be punished according to the laws of the United States
relating to such ships or vessels and offenses on the high seas, which laws for the pur-
pose aforesaid are extended over such islands, rocks, and keys.

Sec. 5577. The President is authorized, at his discretion, to employ the land and
naval forces of the United States to protect the rights of the discoverer or of his
widow, heir, executor, administrator, or assigns.

Sec. 5578. Nothing in this title contained shall be construed as obliging the United
States to retain possession of the islands, rocks, or keys, after the gnano shall have
been removed from the same.

'* The act of GoDgress of August 18, 1856 (P. L., 110) confers a dis-
cretionary power on the President of the United States to decide
whether an island which has not been appropriated by any other na-
tion, and on which guano has been discovered, shall < be considered as
appertaining to the United States,' and whether he shall < employ the
land and naval forces of the United States to protect the rights' of
the discoverers of such an island. This is manifestly a grave and im-
portant duty, to be performed by the President only after all the pre-
requisites of the law shall have been complied with."

Mr. Cass, Sec. of State, to Messrs. Fabena and Steams, June 29, lb57. MSS.
Dom. Let.

<' The act of Congress of August 18, 1856, authorizes the President^
after certain prerequisites have been performed, to determine that
islands upon which gnano deposits have been discovered, appertain to
the United States. It is only after this preliminary decision has been

CHAP. XIV.] TITLE UNDER UNITED STATES STATUTE. [§311.

made that it becomes necessary to determine whether the discoverers
may have exclusive possession of the islands for the purpose of taking
ojQf the guano and selling it ; and the bond and securities provided for
in the second section of the act are not required except with reference
to the exclusive x>osses8ion. In your case there has been no decision
by the President recognizing the island' of Sombrero as the property
of the United States, and of course none authorizing exclusive pos-
session in the discoverers or their assignees. Before these decisions
can be properly made, the prerequisites already referred to must have
been complied with. There must be sufQcient proof of the discovery of
a guano deposit by an American citizen ; that it is not within the
lawful jurisdiction of any other Government ; that it is not occupied
by the citizens of any other Grovernment ; that the discoverer has taken
and kept peaceable possession thereof in the name of the United States;
that the^ facts have been communicated on oath to the Department of
State, with a description of the island, its latitude and longitude, and
that the deposit in question has not been taken out of the posses-
sion of any other Government or people. When the President has
been satisfied on these points, he may in his discretion, regard the isl-
ands containing the discovered deposits as belonging to the United
States, but he is not obliged to do so. The object of the law is to bene-
fit American agriculture by promoting the supply of guano at a rea-
sonable price. Before assuming, therefore, the grave responsibility
involved in declaring a guano island to belong to the United States,
he must be satisfied that the guano found upon it is sufQcient in quan-
tity and quality to justify the measure. And it is only, moreover,
when he shall be fully informed with respect to the value of the de-
posit that he cau fix correctly the penalty of the bond required, and
determine the securities contemplated by the law."

Mr. Casa, Seo. of State, to Messrs. Wood and Grant, Jnly 1, 1657 ; ibid.

To enable an alleged discoverer of a guano deposit to make title, it
is necessary, under the act of Congress of May 10, 1867, to prove (1)
citizenship; (2) that the deposit had not been previously discovered by
another ; (3) that the island was at the time not in occupation or pos-
session or jurisdiction of any other Government. A specific description
of the position of the island must be given.

Mr. Seward, Seo. of State, to Mr. Daggett, Sept. 4, 1867; ibid. See also Mr.
Seward to Mr. PMUips, Mar. 2, 1868; Mr. Seward to Mr. Clark, July 1,
1868; ibid.

The Department has no power to adjudicate iu cases of *' conflict by
citizens of the United States in respect to their rights in a guano island,^
"and the claimants must vindicate their title before the legal tribunals
of the country.'^

Mr. Fish, of State, to Mrs. Stevens, Jane 21, 1869. MSS. Dom. Let. See

Mr. J. C. B. Davis, Acting Seo. of State, to Mr. Gray, Aug. 21, 1869 ; ibid.

S. Mis. 162-.VOL. m 5 ^

§ 311.] GUANO ISLANDS. [CHAP. ZIV.

<^ The ground apon which, under section 5570 of the Bevised Statutes,
the right of citizens of the United States to the use and control of de-
posits of guano on islands, rocks, or keys is based, is the discovery, not
of the island or other place named, but of the deposit of guano. But it
must also be shown that the place of the deposit is ^not within the law-
ful jurisdiction of any other Government.' • • •

^' If it be shown that the place of the deposit is not subject to the juris-
diction of any other Government the determination of the conflicting
claims of citizens of the United States belongs exclusively to this Gov-
ernment. But it may not be improper to observe that the point of most
importance to be ascertained, as between citizens of the United States,
is whether the pretensions of the person laying claim to the discovery
of a deposit conflict with the rights of any other citizen. And it is con-
ceived that a disallowed or abandoned claim would not be a bar to the
subsequent acquirement of rights under the act of Congress bp another
claimant."

Mr. Bayard, Sec. of State, to Mr. Romero, Feb. 26, 1886. MSS. Notes, Mex.

By the act of 1856 (Bev. Stat., § 5570) it is essential that, before an
island whereon guano is discovered shall be deemed as appertaining
to the United States, that the island shall be taken possession of and
actually occupied ; conditions which are not complied with by a mere
symbolical possession or occupancy.

IS'o claim, also under the act, can have an earlier inception than the
actual discovery of guano deposit, possession taken, and actual occupa-
tion of the island, rock, or key whereon it is found. It is requisite, also,
that in determining the proper party to give the bond required by the
act, the political department of the Government should only look to the
party complying with the conditious of the statute, without considering
the legal or equitable rights of other parties to share in the proflts of
the speculation, which are to be left for the determination of the proper
judicial tribunals.

9 Op., 364, Black, 1859.

The President can, under the statute, take no action in respect
to an application by the sureties in a bond given to the United States
from under the guano-island act of 1856 (Bev. Stat., § 6674), to be released
their obligation, in consequence of a breach of the bond by their prin-
cipal.

11 Op., 30, Bates, 1863.

Section 8 of the act of 1865 (13 Stat. L., 494) repeals that part of the act
of 1856 (11 Stat. L., 119) which requires the trade in guano from guano
islands to be carried on in coasting- vessels, and for two years from and
after July 14, 1865, all persons who have complied with section 2 of the

§ 313.] OUANO ISLANDS. [CHAP. XIY.

Ctovemment of a stipulated iodemnity for the private claimants. (34th
Oong.y 3d sess., Senate Ex. Doc. 25 ; ^nd.^ 36th Cong., 2d sess., 10. )'^

Lawrence's Wheaton (ed. 1863), 319,320.

A report of Mr. Marcy, Sec. of State, Jan. 12, 1857, as to the Aves or Bird Isl-
ands, and the title thereto, is given in Senate Ex. Doo. 228, 24th Cong., 3d

Further information will be fonnd ki instructions by Mr. Marcy, Feb. 3, 1^7;
by Mr. Cass Aug. 31, 1857, Dec. 15, 1857, Aug. 24, 1858, Sept. 15, 1868, Dec.
10, 1858; and by Mr. Seward July 30, 1862. MSS. Inst., Venes.

As to indemnity in respect to, see Mr. Cass to Mr. Sanford, Oct. 22, 1859, quoted
taprw, i 132.

The title of Mr. Shelton and his associates to the use of the Aves Islands is held
good, and he is entitled to damages from Venezuela for his forcible ejec-
tion. Mr. Cass, Sec. of State, to Mr. Eibas, Sept. 11, 1857. MSS. Notes^
Venez. Same to same. Mar. 4, 1858.

The report of Mr. Black, Sec. of State, Feb. 23,* 1861, with the accompanying
documents, is given in Senate Ex. Doc. 10, 36th Cong., 2d sees.

As to Aves Isluid convention, see Mr. Seward, Sec. of State, to Mr. Culver, Jan.
24, 1863. MSS. Inst, Yenez.

As to mode of remitting payments received, see Mr. Fish, Sec. of State, to Mr.
Partridge, Dec. 7, 1869; ibid. See also a pamphlet entitled <<The Aves
Island case, with the correspondence relative thereto, and discussion on
law and fiEicts; H. S. Sanford, attorney for claimants, Washington, 1861."

(3) LoBOS Islands.
§ 313.

The dominion of the Lobos gaano islands, west of the coast of Pen^
depends, so far as the title of the United States is concerned, on the
discovery of the islands by Monell, a citizen of the United States, in
1823.

Mr. Webster, Sec. of State, to Mr. Jewett, June 5, 1852. MSS. Dom. Let.

As to title to the Lobos Islands, finally conceded to Peru, see Mr. Webster, Sec»
of State, to Mr. Osma, Aug. 21, 1852, and following letters, Mr. Everett,
Sec. of State, taMr. Osma, Nov. 16, 1852, Nov. 19, 1852. MSS. Notes, Peru.

^^ Upon the present state of the facts and the evidence, this Ctovem-
ment cannot admit the right of Pern to drive away United States ves-
sels from the Lobos Islands. • • •

<^ Whatever may be the exclusive rights of Pern to the Lobos or other
islands near the Peruvian coast, abounding with deposits of guano, the
conviction is deep and general among the consumers of the article in
foreign countries, or at least in the United States, that the high price
of guano is occasioned by the policy which that Grovemment has thought
proper to adopt in reference to its exportation, and that that policy tends
to the advantage of a few individuals at the expense of the consumers.
If, therefore, the Peruvian Gk)vemment expects its exclusive claims to
be assented to, it will be necessary that its policy upon the subject
should be changed.''

Mr. Webster^ Sec. of State, to Mr. Clay, Aug. 30, 1852. MSS. Inst., Peru.
68

CHAP. XIV.] TITLE UNDER UNITED STATES STATUTE. [§ 314.

"It is proper to add, also, that prior to the receipt of this dispatch, in
consequence of the information contained in the one that preceded it,
dated 24th June, the President was induced to believe that the claim
of Peru to exclusive dominion over these islands was better founded
than he had been led to suppose. The orders that had beeu dispatched
to the commander of our naval forces on the Pacific to protect such of
our vessels as might wish to take cargoes of guano from these islands
were accordingly countermanded some weeks since."

Hr. Coniad, Aoting Seo. of State, to Mr. Clay, Sept. 21, 1852 ; ihid.

Hr. Webster's report of Aug. 21, 1852, with accompanying papers, in Senate

Ex. Doo., 109, 32d Cong., Ist sess. See Airther, 2 Cnrtis' Webster, 652 ff;

President Pierce's message, House Ex. Doc. 70, 33d Cong., Ist sess. ; Mr.

Waders report on the Benson claim, in connection with these islands, Sen*

ate Rep. 397, 34th Cong., 3d sess.

(4) Other islands.

§ 314.

The President cannot annex a guano island (Oayo Verde) to the United
States while a diplomatic question is pending between this Ctovemment
and that of a foreign nation, growing out of a claim of dominion by the
latter, over the island.

9 Op., 406, Black, 1859.

For a sommary of the action of the Qoyemment of Pern towards the gnano

islands on its coast, see report of Mr. Seward, Sec. of State, Mar. 30, 1861.

MSS. Beport Book.
As maintaining the title of the United States to the island of Kavassa, see Mr.

Fish to Mr. Preston, Dec. 4, 1872. MSS. Notes, Hayti. Same to same, Jan.

10, 1873 ; md,
A paper relative to occupation of Navassa Island in 1857, is in Senate Ex. Doc.

37, 36th Cong., 1st sess. See for the occapation, under the act of 1866, of

Navassa, the title to which was claimed by Hayti, 30th Cong., Ist sess.,

Senate Ex. Doc. 37. Lawrence's Wheaton (ed. 1863), 319, 320.
Coirespondence as to guano claimed by citizens of the United States in Peru, in

1657-^, is given in Senate Ex. Doc. 69, 35th Cong., 1st sess.
As to Mr. Brissot's alleged discovery of guano, and as to guano on the Galapagos

Islands, see Mr. Maroy, Sec. of State, to Mr. White, Aug. 4, 1854. MSS.

Inst, Ecuador.
As to Alta Vela Island, see House Mis. Doo. 10, 40th Cong., 3d sess.

Mr. Frelinghaysen, in his correspondence with the Mexican legation
at Washington, at 1882, concerning Arenas Key, neither asserted nor
renounced the proprietorship of the United States over that island; nor
did he afBrm that the title thereto rests with the Government of Mexico.
He left the qaestion open for lack of evidence sufficient to lead to a
satisfactory conclnsion in the premises. Ko snch evidence had as yet
been submitted to the Department.

See Mr. Adee, Acting Sec. of State, to Mr. Romero, Jan. 30, 1886. MSS. Notes
Mex.

CHAPTER XV.

PACIFIC METHODS OF BEDBE88.

I. Apology, reparation, satisfactiox, and iKDSBfMiTY.

(1) Apology and saluting flag, $ 315i

(2) Cession of territory, $ 315a.

(S) Case of Chesapeake and Leopard, $ 3156.

(4) Case of the Dartmoor prisoners, $ 315o.

(5) Case of the Prometheus, $ 315<2.
II. Arbitration, $ 316.

HI. Withdrawal of diplomatic relations, $ 317.

ly. Rbtor8)ON and reprisal, $ 318.

y. Non-intbrcoxtbsb, i 319.

VI. Embargo, $ 320.

YIL Display of force, i 321.

I. APOLOGY, EEFABATION, SATISFACTION, AND IDEMHaTT.

(1) Apology and saluting flag.
§ 315.

The apologies and reparation offered in the cases of seizare within
neutral territorial waters of the Chesapeake (1863) and of the Florida^
are detailed 9upra^ § 27, and infra^ 3156; the apology in the Trent case
and the surrender of Messrs. Mason and Slidell are discussed iitfra^ §§
325, 328, 374.

The delays in the action of Great Britain in makiug amends for
the attack by the Leopard on the Ohesapeake are noticed tn/ra, § 3156.

The explanations offered of the bombardment of Oreytown are con-
sidered tsupra^ §§ 50a, 224a. See also iitfra^ § 315d.

Lawrence com. sur droit int., 3, 130, 132.

As to redress in connection with the attack on the Prometbens, see <f^/Via, ( 315<i.

Saluting the flag of a country to which an affront has been offered
may be a mode of apology accepted as satisfactory. As an illustration
of this topic may be mentioned the saluting of flag after the affront as-
sumed to have been offered to the French consul at San Francisco in
1854, (supraj § 98,) and that after the seizure of the Florida in Brazilian
waters. {Supra, § 27).

In the Yirginins case, elsewhere noticed (infra, § 327), where a ves-
sel bearing the flag of the United States was captured by a Spanish
cruiser as a ^' filibuster," and carried to Ouba, and a number of those on
board were shot, reparation was demanded by the Government of the
United States, and also a salute to the flag. The reparation was

CHAP. XV.] INDEMNITY. [§§ 316a, 316&.

granted; but on its afterwards appearing that the papers of the Vir-
ginias were based on a false affidavit of [Jnited States ownership, the
demand for a salate to the flag was withdrawn.

As to Baluting flag, see Blackwood's Mag. for Deo. 1873 (vol. 114, 682). The
rnles^ it is said, "of the United States are singularly minute. With refer-
ence to the last, it may be observed as an odd fact that, while the Ameri-
can President is saluted in his own fleets with a flxed number of twenty-
one guns, the official salutes of the United States to foreigners is made up
of as many shots as there are States'' in the Union.

(2) CsSSIOir OV TERRITORY.

§ 315a.

France, by the convention of 1803 {supra^ § 1486), ceded Loaisiana to the
United States, part of the consideration being the satisfaction by the
United States of the claims of the United States on France for certain
spoliations.

See n^proy^i 148,248.

In the treaty of February 22, 1819^ Spain ceded the Floridas to the
United States, and as an equivalent in part for this cession the United
States agreed to renounce all the claims of her citizens against Spain
for damages and iiguries suffered until the time of the signing of the
treaty. The claims thus renounced included those ^^ on account of prizes
made by French privateers, and condemned by French consuls within
the territory and jurisdiction of Spain,'' and also those ^'arising from
the unlawful seizures at sea and in the ports and territories of Spain or
the Spanish colonies." The United States were to make satisfaction
for the claims thus renounced to the extent of five million of dollars.
A board of three commissioners sat in Washington to distribute this
fimd, and under the express terms of the treaty rejected all claims which
had been previously compensated by France.

A convention entered into July 4, 1831, by the United States and
France opened with these words : <^ The French Government, in order
to liberate itself completely from all the reclamations preferred 'against
it by citizens of the United States for unlawful seizures, captures, se-
questrations, confiscations, or destructions of their vessels, cargoes, of
other property, engages to pay a sum of twenty-five millions of firancs
to ttie Government of the United States, who shall distribute it among
those entitled in the manner and according to the rules which it shall
determine."

The cession of Florida in satisfaction of spoliation claims on Spain is
discussed gupra^ § 161a. See further as to this treaty infraj § 318.

In the same line may be mentioned the cession of California and
other territory by Mexico, supra^ § 154.

(3) CaBB of CmESAPBAKB AND LbOPARD.

§ 3166.

The main features of the outrage by the L'^opard on the Chesapeake in
1807, are elsewhere noticed. (See infra^ § 33 1.) It has also been noticed
that when President Jefferson was advised of this outrage he issued a
proclamation excluding British ships-of-war from onr ports, and requiring

§ 3156.] PACIFIC METHODS OF REDRESS. [CHAP. XV.

that they should not be visited from the shore. (See supra^ §§ 27^.; infra^
§ 319.) The effect of this was to make it necessary for them to resort
to Halifax for water, provisions, and other conveniences, and this ex-
clusion was set up by the British authorities as a grievance of their
own. They refused, therefore, to negotiate as to the reparation to be
made for the attack on the Chesapeake until this proclamation was with-
drawn. Mr. Madison was willing to promise that the proclamation should
be withdrawn as soon as satisfactory reparation was made ; but he de-
clined to withdraw the proclamation in advance.

It was argued by Mr. Bose^ special envoy sent by Great Britain to
the United States in 1807, for the settlement of the Chesapeake question,
that '^ if, when a wrong is committed, retaliation is immediately resorted
to by the injured party, the door to pacific ac^ustment is closed and the
means of conciliation are precluded." Mr. Madison did not, as Secretary
of State, contest this proposition when the retaliation was immediate and
effective, but denied that an act of caution, such as was the excluding
of British cruisers fh)m our waters, induced by a series of wrongs of
which that complained of was only one, could be regarded as such a
retaliation. (See correspondence in 3 Am. St. Pap. (For. Bel.), 213 jf.)
Mr. Madison subsequentty agreed that if reparation be <^ tendered spon-
taneously" by Great Britain, ^< on thereceiptof the act of reparation here,
the proclamation of July 2 shall be revoked."

Mr. Madison to Mr. Pinkney, April 4, 1808. M8S. Inst., MhiUters. 3 Am. St
Pap. (For. Bel.), 221. Supra, $ 107/., 1506; ii0-a, $ 331.

Mr. Bose, being instructed to make the withdrawal of the proclama-
tion an essential preliminary, broke off the negotiations at this point,
and returned to England. (See supraj §§ 107, 108.)

On October 27, 1809, Mr. F. J. Jackson, British minister at Washington,
announced to.Mr. Smith, Secretary of State, that on the annulling of the
President's proclamation, excluding British men-of-war from the har-
bors of the United. States, '^ His Majesty is willing to restore the seamen
taken out of the Chesapeake, on reserving to himself a right to claim in
a regular way" the discharge of such as were native-bom British sub-
jects or deserters. Support was also tendered for the families of such
persons slain on the Chesapeake as were not native-bom British sub-
jects or deserters. As it was impossible for the British Gk)vernment to
comply with this pledge from the fact that one of the persons taken had
been hung under it«s direction, and as the whole plan of ^^ satisfac-
tion " assumed the right of the British Gk)vernment to seize on board an
American man-of-war native-bom British subjects or deserters, the
proposition could not be entertained. And Mr. Jackson's conduct to-
wanls the Government in other respects was so insolent, and his cause
so flagrantly in violation of the obligations imposed by international law
on diplomatic agents, that it became necessary for Mr. Madison to de-
mand his recall. (Supra, §§ 84, 107, 1506.)

The following is the correspondence in 1811 on the same topic be-
tween Mr. Foster, British minister at Washington, who succeeded Mr.
Jackson, and Mr. Monroe, Secretary of State :

<^In pursuance of the orders which I have received from His Eoyal
Highness the Prince Regent, in the name andonthebehalf of His Maj-
esty, for the purpose of proceeding to a final adjustment of the differ-
ences which have arisen between Oreat Britain and the United States
in the affair of the Chesapeake frigate, I have the honor to acquaint you ;

CHAP. XT.] CHESAPEAKE: DARTMOOR PRISONERS. [§ 315c.

'^ First. That I am iustmcted to repeat to the American lOovemment
the prompt disavowal made by His Majesty (and recited in Mr. Erskine's
note of April 17, 1809, to Mr. Smith) on being apprised of the nnanthor-
ized act of the officer in command of his naval forces on the coast of
America, whose recall from a highly important and honorable command
immediately ensued, as a mark of His Majesty's disapprobation.

<^ Secondly. That I am authorized to offer, in addition to that disa-
vowal on the part of His Boyal Highness, the immediate restoration, as
kt'ds circumstances will admit, of the men who, in consequence of Ad-
miral Berkeley's orders, were forcibly taken out of the Ohesapeake to
the vessel fh)m which they were taken ; or, if that ship should be no
looger^n commission, to such sea-port of the United States as the Amer-
ican Government may name for the purpose.

^^ Thirdly. That I am also authorized to offer to the American Govern-
ment a suitable pecuniary provision for the sufferers in consequence of
the attack upon the Ohesapeake, including the families of those seamen
who unfortunately feU in the action, and tiie wounded survivors.

^ These honorable propositions, I can assure you, sir, are made with
the sincere desire that they may prove satisfactory to the Government
of the United States, and I trust they will meet with that amicable re-
oq>tio]i which their conciliatory nature entities them to. I need scarcely
add how cordially I join with you in the wish that they might prove in-
troductory to a removal of all the differences depending between our
two countries."

Mr. Foster, British mlDister ftt Washington, to Mr. Monroe, Sec. of State, Nov.
1, 1811. 3 Am. St. Pap. (For. Rel.), 499.

^ I have had the honor to receive your letter of the 1st liTovembery
and to lay it before the President.

^ It is much to be regretted that the reparation due for such an ag-
gression as that committed on the United States frigate, the Ohesapeake,
should have been so long delayed } nor could the translation of the of-
fending officer firom one command to another be regarded as constituting
a part of a reparation otherwise satisfactory. Oonsidenng, however,
the existing circumstances of the case, and the early and amicable at-
tention paid to it by His BoyalHighness the Prince Begent, the Presi-
dent accedes to the proposition contained in your letter, and, in so doing,
your Government wiU, I am persuaded, see a proof of the conciliatory
disposition by which the President has been actuated.

^^ The officer commanding the Chesapeake, now lying in the harbor of
Boston, will be instructed to receive the men who are to be restored to
tiiat ship."

Mr. Monroe, Sec. of State, to Mr. Foster, Nov. 12, 1811. 3 Am. St. Pap. (For.
BeL), 500. See farther, tupra, $$ 107/., 150( ; tn/ra, i 33.

(4) Case of the Dartmoor prisoners.

§ 315c.

On April 6, 1815, after the proclamation of the peace of Giient, cer-
tain prisoners of war, citizens of the United States, who were confined
in Dartmoor prison, becoming restless at what they may have regarded

$$ 315(7, 316.] PACIFIC METHODS OF REDRESS. [CHAP. XY.

as a deteDtion when entitled to be discharged, showed what the cap-
tain of the gaard considered symptoms of insubordination. They were
unarmed and defenseless, but he called out a squad of soldiers, and,
after some altercation, as to the extent of which the evidence subse-
quently taken differed, ordered, or at least sanctioned, firing by the sol-
diers on the prisoners. The consequence was that seven of the prison-
ers were killed and sixty wounded. The British Gk>vernmeut did not
bring the offenders to trial,, but expressed '^ distress " at the conduct of
its troops, communicating, at the same time, in a letter by the British
charg^ d'affaires to the Secretary of State, the fact that the Prince Ke-
gent had visited the offenders with the information of his ^* disapproba-
tion," making at the same time an offer of '' compensation to the wid-
ows and families of the sufferers." This offer, Mr. Monroe, Sec. of
State, on Dec. 11, 1815, declined.

As to treatment of Dartmoor prisoners, see further infra, $ 348o.

(D) Cass of tub Promxthbus.
§ 315d.

The Prometheus, a steamboat engaged by the American Atlantic and
Pacific Ship Oanal Oompany in the work of the then projected canal,
was attached, when about to leave the harbor of Greytown, in Novem-
ber, 1851, by a writ purporting to have been issued by the *< Mosquito
King " for certain port charges. These charges the commander refused
to pay, on the git>und of their exorbitancy and illegality ; but, on the
Prometheus undertaking to leave the harbor without payment, she was
fired into by the Express, a British armed cutter, under orders of Mr.
Greene, British vice-consul at Greytown, claiming also to be regent of
the Mosquito territory. The charges being then paid by the Atlantic
and Pacific Ship Company under protest, the company complained ot
this outrage to Mr. Webster, who at once instructed Mr. Lawrence, our
then minister at London, to inquire of Lord Palmerston, the foreign
secretary, whether the attack on the Prometheus was under British
authority, and whetiier it was approved by the British Government. .
Lord Palmerston having gone out of office before a reply was made,
inquiries were instituted by his successor, Lord Granville, who, as soon
as he received an official report from Greytown, disavowed and apolo-
gized for the action of the Express.

For subsequent attack on Greytown, see ntpra, $ 224a. Beferenoe to doom.
ments relative to the attack on the Promethens is made Mupra^ % 224«.

n. AMBITBATIOy.
$316.

Arbitration, in reference to private claims, has been already consid-
ered. {Swpraj § 221.^ National disputes as to boundaries, or to other
public issues, are, in like manner, submitted to arbitration. As illustra-
tions may be mentioned the reference of some of the questions arising
under the Treaty of Ghent to the Emperor of Bussia (xupra, § 150);
that of the northeastern boundary to the King of the Netherlands ;
that of the Alabama spoliations to certain eminent statesmen. In all
these cases the questions involved were questions of public law, and in

CHAP. XV.] ABBITEATION. [§-316,

•*

tbis sense distinct from those heretofore discussed as falling ander the
head of private claims. {Supraj § 271.)

By the fifth article of the Treaty of Ghent it was stipulated that com-
missioners should be respectively appointed by the contracting parties
for the purpose of ascertaining, surveying, and finally determining the
northeastern boundary of the United States ; but in case of their disagree-
ment^ their reports should be referred to the arbitration of some friendly
sovereign or state. If the commissioners should agree, then their ^^ map
and declajration fixing the boundary " were to be considered by both
parties ^^ as finally and conclusively fixing the said boundary." In case
of their disagreement, then '^ His Britannic Majesty and the Govern-
ment of the United States engage to consider the decision of such
friendly sovereign or state to be final and conclusive on all the matters
80 referred." The following papers show the proceedings under the
award of the King of the Netherlands, whom both parties agreed on as
arbitrator :

^ His Britannic Miyesty's Government is too well acquainted with the
division of powers in that of the United States to make it necessary to
enter into any explanation of the reasons which rendered it obligatory
on the President to submit the whole subject to the Senate for its ad-
Tiee. The result of that application Is a determination on the part of
the Senate not to consider the decision of the King of the Netherlands
as obligatory, and a refusal to advise and consent to its execution. But
they have passed a resolution advising ^ the President to ox)en a nego-
tiation with His Britannic Majesty's Government for the ascertainment
of the boundary between the possessions of the United States and those
of Great Britain on the northeastern frontier of the United States, ac-
cording to the treaty of peace of 1783.' This resolution was adopted on
the conviction felt by the Senate that the sovereign arbiter had not de-
cided the question submitted to him, or had decided it in a manner un-
aathorized by the submission.

"It is not the intention of the undersigned to enter into an investi-
gation of the argument which has led to this conclusion ; the decision
rf the Senate precludes it, and the object of this communication ren-
ders it unnecessary ; but it may be proper to add that no question could
have arisen as to the validity of the decision had the sovereign arbiter
determined on, and designated, any boundary as that which was in-
tended by the treaty of 1783. He has not done so. Not being able,
consistently with the evidence before him, to declare that the line he
has thought the most proper to be established was the boundary in<
tended by the treaty of 1783, he seems to have abandoned the character
of arbiter and assumed that of a mediator, advising both parties that a
boundary which he describes should be accepted as one most convenient
to them. But this line trenches, as is asserted by one of the States of
tJie Union, upon its territory, and that State controverts the constitu-
tional power of the United States to circumscribe its limits without its
assent. If the decision had indicated this line as the boundary desig-
nated by the treaty of 1783, this objection could not have been urged,

§ 316.] PACIFIC METHODS OF REDRESS. [CHAP. XV,

because then no part of the territory to the north or the east of it could
be within the State of Maine, and however the United States or any
individual State might think itself aggrieved by the decision, as it
would in that case have been made in conformity to the sul^mission, it
would have been carried into immediate effect. The case is now entirely
different, and the necessity for further negotiation must be apparent to
adjust a difference which the sovereign arbiter has, in the opinion of a
co-ordinate branch of our executive powers, failed to decide. That
negotiation will b6 opened and carried on by the President with the
sincerest disposition to bring to an amicable, speedy, and satisfactory
conclusion a question which might otherwise interrupt the harmony
which so happily subsists between the two countries, and which he
most earnestly wishes to preserve. • • •

^' Presuming that the state of things produced by the resolution of
the Senate above referred to, and the desire expressed by the President
to open, carry on, and conclude the negotiation recommended by that
body in the most frank and amicable manner, will convince His Britan-
nic Mfiyesly's Government of the necessity of meeting the offers now
made with a correspondent spirit, the undersigned is directed to pro-
pose for consideration the propriety of carrying on the negotiation at
this place. The lud which the negotiators on both sides would derive
from being in the vicinity of the territory in dispute, as well as the in-
formation with respect to localities from persons well acquainted with
them which they might command, are obvious considerations in favor
of this proposition.

<^ Until this matter shall be brought to a final conclusion the necessity
of refraining, on both sides, from any ex^cise of jurisdiction beyond
the boundaries now actually possessed, must be apparent, and will, no
doubt, be acquiesced in on the part of the authorities of His Britannic
Majesty's province as it will be by the United States.''

Mr. LiYiDgston, Sec. of State, to Mr. Bankhead, Jaly 21, 1832. MSS. Notes,

For. Leg. Brit, and For. St. Pap., 1833-'34, vol. 22, p. 788.
As to finality of arbitrations, see Bupra, $$ 291, 238.
As to Ashbnrton treaty, settling the above controversy, see Mrpra, $ 150e.

^'By that convention (that of September . 29, 1827) it was agreed to
submit the question, which was the true boundary according to the
treaty of 1783, to the decision of an arbitrator to be chosen between
them. The arbitrator selected, having declared himself unable to per-
form the trust, it is as if none bad been selected, and it would seem as
if the parties to the submission were bound by their contract to select
another ; but this would be useless, if the position assumed by the Gov-
ernment of His Britannic Majesty be correct, that it would be utterly
hopeless at this time of day to attempt to find out, by means of a new
negotiation, an assumed line of boundary, which successive negotiators
and which commissioners employed on the spot have, during so many
years, failed to discover. The American Government, however, while

CHAP. XV.] ARBITRATION. [§316.

they acknowledge that the task is not without its difficalties, do not
consider its execution as hopeless. They still trust that a negotiation
opened and conducted in a spirit of frankness, and with a sincere desire
to put an end to one of the few questions which divide two nations
whose mutual interest it will always be to cultiyate the relations of
amity and a cordial good understanding with each other, may, contrary
to the anticipations of His Britannic Majesty's Govemment, yet have a
happy result ; but if this should unfortunately fail, other means, still
untried, remain. It was, perhaps, natural to suppose that negotiators
of the two powers coming to the discussion with honest prejudices, each
in favor of the construction adopted by his own nation, on a matter of
great import to both, should separate without coming to a decision.
The same observations may apply to commissioners, citizens, or sub-
jects of the contending parties, not having an impartial umpire to de-
cide between them; and, although the selection of a sovereign arbiter
would seem to have avoided these difficulties, yet this advantage may
have been more than countervailed by the want of local knowledge.
All the disadvantages of these modes of settlement heretofore adopted
might, as it appears to the American Government, be avoided by ap-
pointing a new commission, consisting of an equal number of oommis-
gioners, with an umpire selected by some friendly sovereign from among
the most skillful men in Europe, to decide on all points on which they
disagree, or by a commission entirely composed of such men so selected,
to be attended in the survey and view of the country by agents selected
by the parties. Impartiality, local knowledge, and high professional
skill would thus be employed, which, although heretofore separately
called into the service, have never before been combined for the solu-
tion of the question. This is one mode, and, perhaps, others might
occur in the course of the discussion, should the negotiators fail in
agreeing on the true boundary. An opinion, however, is entertained^
and has been hereinbefore expressed, that a view of the subject not
hitherto taken might lead to another and more favorable result."

Mr. lavingston, Sec. of State, to Sir C. R. YaDghan, Apr. 30, 1833. M8S. Notes^
For. Leg. Brit, and For. St. Pap., 1833-'34, vol. 22, p. 804.

Sir C. B. Vaughan's reply, dated May 11, 1833, is in Brit, and For.
St Pap., 1833-^34, vol. 22, p. 806. In it he says :

<< This r^ection of the decision of the arbitrator by the Government
of the United States has thrown the parties, as Mr. Livingston observes^
into the situation in which they were prior to the selection of His Keth-
erland Majesty to be the arbitrator between them. It may be observed,
also, that thoagh the tracing of the boundary line according to the
treaty of 1783 appeared from the statements delivered by the respective
parties to be the principal object of arbitration, the King of the Neth-
erlands was invited, in general terms, ^ to be pleased to take upon him-
self the office of arbitration of the difference between the two Qovem-
acnts.'

§316.] PACIFIC BIETHODS OF'BEDBESB. [CHAP. XY.

'< It was a measure adopted in order to pat an end to tedious and
unsatisfactory negotiations which had occupied the attention of the two
Qovemments for more than forty years^ and by the seventh article of
the convention it was agreed ^that the decision of the arbiter, when
given, shall be taken as final and concluaivej and shall be carried, with-
out reserve, into immediate effect.'

^^The undersigned cannot but regret the rejection of the decision of
the King of the Netherlands, when he sees, throughout the note of Mr.
Livingston^ all the difficulties which attend the endeavors of the two
Ctovernments, actuated by the most frank and friendly Spirit, to devise
any reasonable means of settling this question.

<^Mr. Livingston seems to be persuaded that a renewed negotiation
may yet have a happy result, and the undersigned observes with satis-
faction that tbe Government of the United States has consented not
now to insist upon the navigation of the Saint John's River, a claim
which the British Government refused to consider in connection with
the boundary question.

^'But the arrangement in progress last summer having failed, which
was to result in enabling the Government of the United States to treat
for a more convenient boundary, that Government, in the present state
of things, can only treat on the basis of the establishment of the
boundary presented by the treaty.

*^The undersigned is convinced that it is hopeless to expect a favor-
able result fix)m a renewed negotiation upon that basis. With regard
to Mr. Livingston's proposal, that in the event of negotiation failing,
the two Governments may have recourse to a commission of boundary,
composed of equal numbers selected by each party, to be attended by
an umpire, chosen by a friendly sovereign, to decide at once all dis-
puted points, or that a commission of some of the most skillful men in
Europe should be selected by a friendly sovereign, and should be sent
to view and survey the disputed territory, attended by agents appointed
by the parties, the undersigned can only express his conviction that
after the expense, delay, and unsatisfactory result of the commission
of boundary under the fifth article of the Treaty of Ghent, it must be
with great reluctance that the British Government consents to have
recourse to such a measure.

^^Thoug;h the Constitution of the United States holds out to foreign
powers that treaties are to be effected by ministers acting under in-
structions &om the President, yet the Senate is invested with a control
over all subjects arising out of intercourse with foreign powers. Their
participation in the making of treaties has generally been limited, since
the administration of General Washington, to advising and consenting
to ratify a treaty; but their agency has been admitted by the Presi-
dent, formerly, by advising on the instructions to be given previously
to opening a negotiation. When the Senate, in the month of July last
year, advised the rejection of the decision of the King of the Nether-
lands, they took the initiative in the process of the negotiation which
they directed the President to offer to open at Washington for the set-
tlement of the boundary, as they restricted the Executive to treat only
for a boundary according to the description in the treaty of 1783.

<'I am persuaded that there will be great difficulty in constituting
a joint commission upon the plan of Mr. Livingston. To insure proper
skill and impartiality, it should be selected in Europe. From the na-
ture of the country the commissioners can be actively employed only

CHAP. XV.] ARBITRATION. [§ 316.

daring the summer moDtbs; the undertaking will last, therelore, in all
probability, more than one year.

<< Should His Majesty's Government reject the proposition of Mr. Liv-
ingston, Mr. McLane has stated tli^t, without the consent of Maine, the
General Government cannot treat for a conventional line of boundary.
It may be inferred from Mr. McLane's note of 28th May, that the fail-
ure of the commission to discover the highlands to be sought after,
would give ground of greater public necessity for that consent than at
present exist.

"The rejection of Mr. Livingston's proposition, and the impossibility
of engaging the Government of the United States to treat for a con-
ventional line, must have the effect, I presume, of leaving the disputed
territory in the possession of His Majesty, unless it should still be left
at the option of this Government to acquiesce in the boundary sug-
gested by the King of the Netherlands."

Sir C. R. VaDghan to Lord PalmerHton, July 4, 1833. Brit, and For. St. Pap.,
183a-»34, vol. 22, p. 823.

Lord Palmerston, in an instruction to Sir C. B. Yaughan, dated De-
cember 21, 1833, says :

'' His Majesty's Government trust that they gave a proof of this
[conciliatory] disposition on their part when they intimated to the Gov-
ernment of the United States that not only were they prepared to
abide, as they consider both parties bound to do, by the decisions of
the Ejng of the ^Netherlands upon such of the points referred to him
uiK>u which he has pronounced a decision ; but that they were willing
to agree to the compromise which that sovereign has recommended,
npon the single point on which he found it impossible to make a decision
strictly conformable with the terms of the treaty.

" The Government of the United States has not hitherto concurred
▼ith that of His Majesty iu this respect ; but as such a course of pro-
ceeding on the part of the two Governments would lead to the speediest
and easiest settlement, it is the wish of His Msgesty's Government to
draw the attention of the American Cabinet to some considerations on
this subject, befoife they advert to the new proposition made to you by
Mr. Livingston.

^^ It is manifest that nothing but a sincere spirit of conciliation could
induce His Miyesty's Government to agree to the adoption of the
arrangement recommended by the King of the Netherlands ; because
the boundary which he proposes to draw between the two parties would
assign to Uie United States more than three-lifkhs of that disputed ter-
ritory, to the whole of which, according to the terms of the award itself,
the title of the United States is defective in the same degree as that of
Great Britain.

^^ But it seems important, in the first place, to consider what the ref-
erence was which the two parties agreed to make to the King of the
Netherlands, and how far that sovereign has determined the matters
which were submitted for his decision.

** Now, that which the two Governments bound themselves to do by
the convention of the 29th of September, 1827, was to submit to an
arbiter certain ' points of difference which had arisen in the settlement
of the boundary between the British and American dominions,' and to
abide by his decision on those points of difference ; and they subse-
quently agreed to name the King of the Netherlands as their arbiter.
The arbiter then was called upon to decide certain questions, and if it

§316.] PACIFIC METHODS OP REDRESS. [CHAP. XV.

should appear that he has determined the greater part of the points
submitted to him his decisions on those points cannot be rendered in-
valid by the mere circumstance that he declares that one remaining
point cannot be decided in any manner that shall be in strict conformity
with the words of the treaty of 1783, and that he, consequently, recom-
mends to the two parties a compromise on that particular point."
This position is then vindicated at length.

For this instruction in full, see Brit, and For. St. Pap.. 1833-^34, vol. 22, p. 826.

By the Treaty of Ghent " all attempts to settle the boundary ended
in making pi-ovision for referring the question to the arbitrament of a
friendly sovereign. This was done, the King of the Netherlands being
agreed upon as the arbiter. He accepted the trust, executed it, and
made an award nearly satisfactory to the British Oovernment, because
it cut off a part of the northern projection of Maine, and so admitted a
communication, although circuitous, between Halifax and Quebec; but
still leaving the highland boundary opposite that capital. The United
States rejected the award, because it gave up part of the boundary of
1783 ; and thus the question remained for nearly thirty (twelve t) years
longer, until the treaty of 1842, Great Britain demanding the execution
of the award, the United States refusing it."

2 Benton's Thirty Tears, ^^c, 438.

As to Treaty of Ghent, see 9upra, $ 150c.

Mr. Webster, in his speech of April 6 and 7, 1846, in defense of the
Treaty of Washington, thus speaks (5 Webster's Works, 84) :

«i The King of the Netherlands was appointed arbitrator under this
convention, and he made his award on the 10th of January, 1881. This
award was satisfactory to neither party ; it was rejected by both, and
the whole matter was thrown back upon its original condition. This
happened during the first term of General Jackson's administration.
He immediately addressed himself to new efforts lor the a<]Uustment of
the controversy.''

Mr. Webster then proceeds to notice the several messages of General
Jackson bearing on this question, closing with that of December, 1835,
where he said : ^' In the settlement of the question of the northeastern
boundary little progress has been made. Great Britain has declined
acceding to the proposition of the United States, presented in accord-
ance with the resolution of the Senate, unless certain preliminary con-
ditions are admitted, which I deem incompatible with a satisfactory and
rightful adjustment of the controversy."

See tupra, $$ 150o, 150d

*^When a dispute as to territorial limits arises between two nations,
the ordinary course is to leave the country claimed by them respectively
in the same condition (or as nearly so as possible) in which it was
when the difficulty first occurred, until an amicable arrangement can
be made in regard to conflicting pretensions to it. It has Bot been the
intention of the United States to deviate &om this course, nor has any
notice been given by Mexico that she proposed to assume jurisdictiou
over it, or change the possession as it was held at the conclusion of the
treaty of peace and limits between the two Eepublics."

Mr. Maroy, Sec. of State, to Mr. Conkling, May 18, 1853. MS3. Inst., Hex.
80

CHAP. XV.] ARBITRATION. [§ 316.

" Motions to opeu or set aside international awards are not Sntertained
unless made promptly, and upon proof of fraudulent concoction or of
strong after-discovered evidence."

Mr. Bajard, Sec. of State, to Mr. Morris, May 12, 1886. MSS. Dom. Let.

"When there is a persistent refusal on the part of one Government
to pay damages claimed by another on behalf of one of its citizens, the
only method of redress that exists, if arbitration be not i^esorted to, is
by reprisal, which, in a case such as the present, would inevitably pro-
duce war. It certainly would not be claimed that at this period, when
the refusal of the British Government to pay the claim has been ac-
quiesced in by Administration after Administration without even a
suggestion of reprisals, reprisals could now be threatened."

Mr. Bayard, Sec. of State, to Messrs. Benedict, Taft, and Benedict, May 18,
1^; ibid.

^^ The interest of peace and good will among nations are so transcend-
ent, and the practice of international mediation and arbitration is so
essential to those intere8ts,that a proud and self-respecting people would
always submit to the consequences of very great errors of judgment,
and sometimes even to those of bias and prejudice in international ar-
bitration, rather than to refuse to execute an award ; but it should be
kept in mind that there are occasions when such obedience would be a
crime against the true interests of peace and good neighborhood, and
destructive of international arbitration as the best of their safeguards.
If, as Vattel tersely states it, ^ the arbitrators, by pronouncing a sen-
tence evidently unjust and unreasonable, should forfeit the character
with which they are invested, their judgment would deserve no atten-
tion.' A just nation, however, in whose favor an award has been made,
should be willing to forego the advantage of a victory on far less evi-
dent grounds than those which would justify a refusal by the losing
party to perform, and to readjust and retry the matter in dispute, if it
had reason to think that any serious error had been committed, or that
anything of corruption or unfairness had played apart in the affair, for
00 honorable Government could consent to profit by a success so gained.
Upon such principles Congress at its last session authorized the Presi-
dent to reopen, if he should see cause, certain awards in favor of citi-
zens of the United States against the Government of Mexico. • • •

" But the Treaty of Washington was a written agreement between
two parties, and not a statute ; and the history and language of pre-
vious treaties between them may be justly resorted to to throw light
upon a disputed interpretation. The fifth article of the treaty of 1794
provided for three commissioners to decide upon the river intended by
the * Saint Croix,' named by the treaty of 1783, but was silent as to the
power of a majority. The same treaty created five commissioners to
ascertain certain damages to British subjects, and conferred decisive
power upon three of them. It also established a similar commission of
five to ascertain certain losses of Americans, and conferred full power
upon a majority. Can it be doubted that in that case both Govern-
ments intended, for obvious reasons, to make different and more elastic
provisions respecting decisions touching private claims from those re-
lating tQ their boundaries t The article as to the Saint Croix was fol-
lowed by Article V of the Treaty of Ghent on the same general sub-

S. Mis. 162— VOL. m 6 ^^

§316.] PACIFIC METHODS OP REDRESS. [CHAP. XV.

jeet, which provided for two commissioners and the umpirage of a
friendly power. The treaty of 1822 created a commission to ascertain
the valne of slaves, etc., under the award of the Emperor of Bnssia, and
provided for the decision of Hhe majority.' The decision of the Em-
peror on the snbject in dispute referred to hifn is worthy of notice, as
declaring a wholesome rule in interpreting treaties. He says that, with
the concurrence of the two powers, he has ' given an opinion founded
solely upon the sense which results from the text of the artioU? The
claims treaty of 1853 provided for two commissioners and an umpire.
The same was done on the fishery question in the treaty of 1854. By
the slave-trade treaty of 1862, the judges of the mixed courts and the
arbitrator were authorized to decide by * a majority of the three.' It
appears, then, from the history and language of the long series of treaties
between the two Oovernments, that they never treated upon the idea
that by the rules of public law, as between them, a majority of commis-
sioners or arbitrators, or even of members of a court, had decisive
powers unless the contrary was expressed, and that, on the contrary,
they had treated in conformity with the well-known rules of both coun-
tries that the decision of conventional arbitrators, commissioners, or
courts must be unanimous to be valid, unless the instrument of their
creation prbvided otherwise, and that, as in the article of the treaty of
1871, respecting places excepted from fishery, when they were willing
that a difference between two commissioners of their own appointment
should be decided by a single other person or power, they knew how to
say so, and did say so. • • •

''What are the principles of ordinary procedure in arbitration t In
Germany, France, and other countries whose jurisprudence is founded
on the Boman law, they are one thing — allowing a majority to decide.
In Great Britain and the United States, where the common law prevails,
they are and always have been the oppoeite^uot allowing a majority
to decide without a stipulation to that end. Halleck's statement, then,
is practically correct ; but the rule he lays down does not apply between
all states, and the structure of his sentence does not import that it
does so. Thus Hefi'ter, the accuracy and precision of whose writings
has made his work a universal authority, states the complete rule.
Bluntschli, also cited by Lord Salisbury (whose book was published in
1868 without notes or citations), states boldly that ' the decree of the
majority serves as the decree of the entire tribunal ' (sec. 493, German
edition). He, too, was a civil law writer in a civil law country, and in
that light states the rule correctly without, like Hefflteri giving the
foundation of it, viz, the principles of ordinary procedure. • • •

" On a full view, then, of the authorities referred to in connection
with the observations of other writers on the snbject, and its history,
is it not a just and inevitable conclusion that international law, so far
as any such thing exists, lays down no other rule on the subject than
that, in the absence of an intention to be drawn from the text of the
treaty, the powers of the arbitrators or commissioners are to be meas-
ured by the principles of ordinary procedure of the treating nations t"

Hod. George F. Edmnnds in North Am. Kev., Jan., 1879, p. 6 jf. See ntpraf $
221. See App., Vol. Ill, ^ 316.

On June 12, 1848, Lord Palmers ton earnestly opposed a proposition
in Parliament that Great Britain should pledge herself to abide the re-
sult of arbitration, on the ground that ^^ there is no country which, from
its politictd and commercial circumstances, from its maritime interestS|

CHAP. XV.^ WITHDEAWAL OP DIPLOMATIC RELATIONS. [§317.

and from its colonial possessions, excites more anxious and jealous
feelings in different quarters than England does, and there is no coun-
try tiiat would find it more difficult to obtain really disinterested and
impartial arbitrators."

Creasy's Int. Law, 698.

For notioe of the arbitration of the Emperor of Germany in reference rto the San
Jnan boandary, see 3 Phill. Int. Law (3d ed.), 5.

The award of the President of the United States as arbiter in the contention be-
tween Great Britain and Portugal as to island of Bnlama is given in the
Brit, and For. St. Pap., Id70-'71, vol. 61.

The award of the Emperor of Austria in the controversy between Great Britain
and Nicaragua is given mpra, $ 293.

As to Genava award, see infra, $ 402a.

As to Halifax award, see supra, $$ 301 ff>

<* In the arbitrations ander Jay's treaty, it seemed to be supposed that
a party had the right to withdraw from the commission under direc-
tions from the political department of the Government. Great Britain
claimed the same right in the notices to the arbitrators in the late ar-
bitration at Geneva, which were given on the 15th of AprU, 1872. It
may be questioned whether this is in accordance with the idea of an
independent and impartisJ judicial tribunal.

*' A mixed commission is competent to decide upon the extent of its
jurisdiction.

'< The proceedings of the mixed commission, held in London under
the provisions of the convention of 1853 with Great Britain, have been
made public In several cases they appear to have considered and
passed upon the question of their own jurisdiction. In a few cases they
were required to construe the treaties between the two countries. In
the case of the John, captured by Great Britain after the time when,
by the terms of the 2d article of tlie Treaty of Ghent, hostilities should
have ceased, and wrecked by the captor, it was held that the owners
were entitled to compensation, as restitution could not be made. In
the case of the Washington, it was held that American fishermen were
not exchided by the convention of 1818 from fishing in the open waters
of the Bay of Fundy.^

Mr. J. C. B. Davis, Notes, Ac, Supra, $$ l^/» ^1-

m. WITHDRAWAL OF DIPLOMATIC RELATIONS,

§ 317.

The practice as to the dismissal or withdrawal of ministers is considered mjm' a,

H 81, H3, 84, 85.
Notices of the suspension of diplomatic intercoorse with France in 1796 are

given 9upra,^ 83/., 148/., and with Great Britain in 1809 9upra, $$ 84,

107, 1505.

'*A hope was for a short time entertained that a treaty of peace,
actually signed between the Oovernments of BuenoSiAyi'es and Brazil,
would supersede all further occasions for those collisions between bellig-
erent pretensions and neutral rights which are so commonly the result
of maritime war, and which have unfortunately disturbed the harmony
of the relations between the United States and the Brazilian Govern-

§ 317.] PACIFIC METHODS OP REDRESS. [CHAP. XV.

ment. At their last session, Congress were informed that some of the-
naval officers of that Empire had advanced and practiced npon princi-
ples in relation to blockade and to nentral navigation which we conld
i^t sanction, and which our commanders found it necessary to resist.
It appears that they have not been sustained by the Government of
Brazil itself. Some of the vessels captured under the assumed au-
thority of these erroneous principles have been restored, and we trust
that our just expectations will be realized, that adequate indemnity
will be made to all the citizens of the United States who have suffered
by the unwarranted captures which the Brazilian tribunals themselves
have pronounced unlawful.

'^ In the diplomatic discussion at Eip de Janeiro of these wrongs
sustained by citiaens of the United States, and of others which seemed
as if emanating immediately from that Government itself, the charg4
d'affaires of the United States, under an impression that his represen-
tations in behalf of the rights and interests of his countrymen were
disregarded and useless, deemed it his duty, without waiting for in-
structions to terminate his official functions, to demand his passporta
and return to the United States. This movement, dictated by an honest
zeal for the honor and interest of his country, motives which operated
exclusively upon the mind of the officer who resorted to it>, has not been
disapproved by me. The Brazilian Government, however, complained
of it as a measure for which no adequate intentional cause had been
given by them ; and, upon an explicit assurance, through their charg6
d'affaires residing here, that a successor to the late representative of
the United States near that (Government, the appointment of whom
they desired, should be received and treated with the respect due to
his character, and that indemnity should be promptly made for all in-
juries inflicted on citizens of the United States, or their property,
contrary to the laws of nations, a temporary commission as charg6
d'affaires to that country has been issued, which, it is hoped, will en-
tirely restore the ordinary diplomatic intercourse between the two Gk>v-
emments and the Mendly relations between their respective nations.'''

President J. Q. Adams, Third Annaal Message, 1827.

A refusal to accept an ultimatum as to a claim for damages due a citi-
zen of the United States, may be followed by a withdrawal of our diplo-
matic representative at the country by which the demand is refused.

Mr. Cass, Seo. of SUte, to Mr. Dana, Oct. 31, 1860. MSS. Dom. Let.

The imposition by Mexico of a tax unduly discriminating against
citizens of the United States, if not a breach of the treaty between the
United States an^ Mexico, is an unfriendly act to be noticed by the
United States.

Mr. Cass, Sec. of State, to Mr. Forsyth, June 23, 1858. MSS. Inst., Mez. Same^
to same, July 15, 1858; ibid.

§318.] PACIFIC METHODS OF REDBESS. [CHAP. XV.

mitted by their army in Upper Canada, it has become yoar duty, con-
formably with the nature of the governor-general's application, to issue
to the naval force under your command an order to destroy and lay
waste such towns and districts upon the coast as may be found assail-
able.

^< It IS seen, with the greatest surprise, that this system of devasta-
tion, which has been practiced by the British forces, so manifestly con-
trary to the usages of civilized warfare, is placed by you on the ground
of retaliation. No sooner were the United States compelled to resort
to war against Great Britain than they resolved to wage it in a manner
most consonant to the principles of humanity and to those friendly re^
lations which it was desirable to preserve between the two nations alter
the restoration of peace. They perceived, however, with the deepest
regret that a spirit alike just and humane was neither cherished nor
acted on by your Government. Such an assertion would not be haz-
arded if it was not supported by facts, the proof of which has, perhaps,
already carried the same conviction to other nations that it has to the
people of these States. Without dwelling on the deplorable cruelties
committed by the savages in the British ranks and in British pay at
the river Baisin, which to this day have never been disavowed or
atoned for, I refer, as more immediately connected with the subject of
your letter, to the wanton desolation that was committed at Havre de
Grace and at Georgetown, early in the spring of 1813. These villages
were burnt and ravaged by the naval forces of Great Britain, to the
ruin of their unaided inhabitants, who saw with astonishment that
they derived no protection to their property from the laws of war.
During the same season scenes of invasion and pillage, carried on under
the same authority, were witnessed all along the waters of the Chesa-
peake to an extent iuflicting the most serious private distress and under
circumstances that justified the suspicion that revenge and cupidity^
rather than the manly motives that should dictate the hostility of a
high-minded foe, led to their perpetration. The late destruction of the
houses of the Government in this city is another act which come^ nec-
essarily into view. In the wars of modern lEurope no example of the
kind, even among nations the most hostile to each other, can be traced.
In the course of ten years past the capitals of the principal powers of the
continent of Europe have been conquered and occupied idternately by
the victorious armies of each other, and no instance of such wanton and
unjustifiable destruction has been seen. We must go back to distant
and barbarous ages to find a parallel for the acts of which I complain*

'*' Although these acts of desolation invited, if they did not impose
on the Government the necessity of retaliation, yet in no instance has
it been authorized.

" The burning of the village of Newark, in Upper Canada, posterior
to the early outrages above enumerated, was not executed on that
principle. The village of Newark adjoined Fort George, and its de-

CHAP. XV.] RETORSION AND REPRISAL. [§318.

stnictioD was Jastified by the officers who ordered it, ou the ground
that it became necsssary in the military operations there. The act,
however, was disavowed by the Government. The burning which took
place at Long Point was unauthorized by the Government, and the
conduct of the officer subjected to the investigation of a military tri-
bunal. For the burning of Saint David's, committed by the stragglers,
the officer who commanded in that quarter was dismissed without a
trial for not preventing it.

'' I am commanded by the President distinctly to state, that it as little
comports with any orders which have been issued to the military and
naval commanders of the United States as it does with the established
and known humanity of the American nation, to pursue a system which
it appears you have adopted. This Government owes it to itself, to the
principles which it has ever held sacred, to disavow, as justly charge-
able to it, any such wanton, cruel, and unjustifiable warfare.

^' Whatever unauthorized irregularities have ever been committed by
any of its troops, it would have been ready, acting on these principles
of sacred and eternal obligation, to disavow, and as far as might be
practicable, to repair. But in the plan of desolating warfare which
your letter so explicitly makes known, and which is attempted to be ex-
cused on a plea so utterly groundless, the President perceives a spirit
of deep-rooted hostility, which, without the evidence of such facts, he
eould not have believed existed, or would have been carried to such an
extremity.

*^ For the reparation of injuries of whatever nature they may be, not
sanctioned by the law of nations, which the military or naval force of
either power may have committed against the other, this Grovemment
will always be ready to enter into reciprocal arrangements. It is pre-
sumed that your Government will neither expect nor propose any which
are not reciprocal.

" Should your Government adhere to a system of desolation, so con-
trary to the views and practice of the United States, so revolting to
humanity, and repugnant to the sentiments and usages of the civilized
world, whilst it will be seen with the deepest regret, it must and will be
met with a determination and constancy becoming a free people con-
tending in a just cause for their essential rights and their dearest inter-
ests."

Mr. Monroe, See. of State, to Vice- Admiral Cochrane, Sept. 6, 1814. 3 Am. St.

Pap. (For. Bel.), 693.
Afl to reprisals in war of 1812, see further ii0>a, 348d, 349.

"I have had the honor to receive your letter of the 16th instant this
morning in reply to the one which I addressed to you in the Patuxent.

"As I have no authority from my Government to enter upon any
kind of discussion relative to the points contained in your letter, I have
only to regret that there does not appear to be any hope that I shall
be authorized to recall my general order, which has been further sanc-

§318.] PACIFIC METHODS OF EEDKE8S. [CHAP. XV.

tioued by a sabseqaent request from Lientenant-Gteneral Sir George
Prevost.

"A copy of your letter will tbis day be forwarded by me to England^
and, until I receive instructions from my (Government, the measures
which I have adopted must be x>ersi8ted in, unless remuneration be
made to the inhabitants of the Oanadas for the injuries they have sus-
tained from the outrages committed by the troops of the United States."

Vice-Admiral Cochrane to Mr. Monroe, See. of State, Sept. 19, 1814. 3 Am. St.
Pap. (For. Bel.), 694. Infra, i 348b.

The treaty of July 4, 1831, negotiated by Mr. Bives, in Paris, fixed
the spoliation indebtedness of France to the United States at 25,000,000
francs, payable in six annual installments, with interest. The treaty,
however, could not be executed or the money paid wiUiout the action
of the House of Deputies. This the then ministers hesitated to pro-
pose to the house, though the United States, in discharge of a stipula-
tion made in the treaty as an equivalent, modified by act of Oongress
the duty on French wines. So little prepared was the United States
Government for the failure on the part of France to ftalfill her treaty
obligations that Mr. McLane, on January 7, 1833, drew on the French
minister of finance for Uie first installment of the debt, the draft matur-
ing Febuary 7, 1833, the day of payment. The draft, in the hands of a
European indorsee, was refused payment on the ground that no appropri-
ation had been made. Mr. Edward Livingston, then Secretary of State,
was, on May 24, 1833, commissioned as minister to France, where he
arrived in September, 1833, the mission having been vacant since the
return of Mr. Bives in 1831. The King (Louis Philippe) received Mr.
Livingston with great courtesy, but showed great unwillingness to di-
rect his ministry to bring up the question of the debt before the House
of Deputies. It was suggested that in the negotiation of the treaty
Mr. Eives had obtained an undue advantage from a superior knowledge
of the facts ; but, as Mr. Livingston well replied, this could not with
any propriety be alleged, since the United States in making up its case
had to depend almost exclusively on papers obtained in France. (Jen-
era! Jackson was much irritated at this and other evasions of duty, but
his confidence in Mr. Livingston led him to intrust that eminent states-
man with full discretion. This discretion to its entire extent was nec-
essary to avoid a rupture. Twice within the six months following Mr.
Livingston's arrival was the question postponed by the House of Dep-
uties ; and then payment was refused by a majority of eight. When a
new House of Deputies was organized in 1834, the matter was again
postponed ; and so indignant was President Jackson at these succesive
breaches of treaty obligation that in his annual message of December,
1834, he recommended reprisals. This message, coupled with certain
dispatches of Mr. Livingston which had been imprudently published
by the United States Government, produced a feeling of great anger
in France. The French minister of foreign affairs at once informed
Mr. Livingston that while the King would apply to the House of Depu-
ties for an appropriation for payment of the debt, he considered, after
the language used by the Government of the United States, that he
could not permit his minister, M. Serrurier, to leave for Washington.
Mr. Livingston was then offered his own passports. Mr. Livingston, in,
reply, stated that on the question of voluntarily leaving France he would
await the instructions of his own Government. This course was ap-

CHAP. XV.] BETOBSION AND BEPBISAL. [§ 318.

proved by the President, wlio directed Mr. Livingston that if the ap-
propriation was rejected he was to leave France in a United States ship-
of-war then waiting his orders ; while if the appropriation was made
Mr. Livingston was to leave France for England and place the legation
in the hands of the charge d'affaires. The Hoase of Depntfes resolved
at last, when the crisis came, to pass the appropriation, bnt it attached
to the resolution the proviso that the money should not be paid until
satisfactory explanation had been made of those portions of the Presi-
dent's message above referred to which reflected on France. Mr. Liv-
ing^iton, being placed in a position for which he had no instructions, and
feeling that he could not, under any circumstances, consent to treat an
Executive message to Congress, which is a matter exclusively of do-
mestic concern (see supra^ § 79), as subject to the criticisms of a foreign
power, called for his passports, leaving the legation in charge of Mr.
Barton as charge d'affaires, and addressing to the Due de Broglie, then
French minister of foreign affairs, a vindication of his position in re-
garding the President's message as not the subject of explanation or
criticism. (For extracts, see «iepra, § 79.)

Mr. Barton's instructions, when left as charge d'affaires in Paris on
Mr. Livingston's withdrawal, were, in case of a refusal of the French
Government to pay the installment due, to surrender his mission and
return home. The Due de Broglie, French minister of foreign affairs,
having informed Mr. Barton that the money would not be paid until
there was an expression of regret from the President of the United
States at the misunderstanding th&t had existed, accompanied with
what was tantamount to an apology, Mr. Barton left France to obtain
direct instructions from the President as to the course to be pursued.
He was joined, when he returned to New York, by Mr. Livingston, who
went with him when he went to Washington. President Jackson, when
the tacts were reported to him, drafted a special message which he sent
to Mr. Livingston for revision. Mr. Livingston considered the terms
too peremptory, and on January 11, 1836, wrote to the President as
follows :

^^ The message about to be delivered is of no ordinary importance ;
it may produce war or, secure peace. Should the French Government
be content to receive your last message, they will not do so utitil they
have seen this. There should not, therefore, be anything in it unneces-
sarily irritating. You have told them home truths in the past. You
have made a case which will unite every American in feeling on the side
of our eountry. It cannot be made stronger, and to repeat it would be
unnecessary. The draft you did me the honor to show me would make
an admirable manifesto or declaration of war; bnt we are not yet come
to that. The world would give it that character, and issued before we
know the effect of the first message, it would be considered as precipi-
tate. The characteristics of the present communication ought, in my
opinion, to be moderation and firmness. • • • Moderation in lan-
guage, firmness in purpose, will unite all hearts at home, all opinions
abroad in our favor. Warmth and recrimination will give arguments
to false friends and real enemies, which they may use with effect against
us. On these principles I have framed the hasty draft which I inclose.
Yon will with your usual discernment determine whether it suits the
present emergency."

This draft, thus submitted, was made the basis of the President's
message of January 15, 1836. The tone of this message, together with
that of the message immediately preceding, was such as to induce the

§ 318 ] PACIFIC METHODS OF REDRESS. [CHAP. XV.

French Government, as hereinafter stated, to pay the installments due
without further reservation.

" Our institutions are essentially pacific. Peace and friendly inter-
course with all nations are as much the desire of our Government as
they are the interest of our people. But these objects are not to be
permanently secured by surrendering the rights of our citizens, or per-
mitting solemn treaties for their indemnity in cases of flagrant wrong
to be abrogated or set aside.

^^ It is undoubtedly in the power of Congress seriously to affect the
agricultural and manufacturing interests of France by the passage of
laws relating to her trade with the United States. Her products, man-
ufactures, and tonnage may be subjected to heavy duties in our ports,
or all commercial intercourse with her may be suspended. But there
are powerful, and, to my mind, conclusive objections to this mode of
proceeding. We cannot embarrass or cut off the trade of France with-
out at the same time, in some degree, embarrassing or cutting off our
own trade. The injury of such a warfare must fall, though unequally,
upon our own citizens, and could not but impair the means of the Gov-
ernment, and weaken that united sentiment in support of the rights
and honor of the nation which must now pervade every bosom. Nor
is it impossible that such a course of legislation would introduce once
more into our national councils those disturbing questions in relation
to the tariff of duties which have been so recently put to rest. Besides,
by every measure adopted by the Government of the United States '
with the view of injuring France, the clear perception of right which
will induce our own people, and the rulers and people of all other na-
tions, even of France herself, to pronounce our quarrel just, will be ob-
scured, and the support rendered to us, in a final resort to more decisive
measures, will be more limited and equivocal. There is but one point
in the controversy, and upon that the whole civilized world must pro-
nounce France to be in the wrong. We insist that she shall pay ns a
sum of money which she has acknowledged to be due, and of the justice
of this demand there can be but one opinion among mankind. True
policy would seem to dictate that the question at issue should be kept
thus disemcumbered, and that not the slightest pretense should be
given to France to persist in her refusal to make payment by any act
on our part affecting the interests of her people. The question should
be left as it is now, in such an attitude that when France fulfills her
treaty stipulations all controversy will be at an end.

^^ It is my conviction that the United States ought to insist on a prompt
execution of the treaty, and in case it be refused, or longer delayed, take
redress into their own hands. After the delay on the part of France,
of a quarter of a century, in acknowledging these claims by treaty, it is
not to be tolerated that another quarter of a century js to be wasted in
negotiating about the payment. The laws of nations provide a remedy
for such occasions. It is a well-settled principle of the international

CHAP. XV.] BET0K8I0N AND BEPKISAL. [§318.

code that where one nation owes another a liquidated debt, which it re-
fuses or neglects to pay, the aggrieved party may seize on the property
belonging to the other, its citizens or subjects, suflBcient to pay the debt,
without giving just cause of war. This remedy has been repeatedly re-
sorted to, and recently by France herself toward Portugal, under cir-
cumstances less unquestionable."

President Jacksoiiy Sixth Annnal l^ssage, 1834.

Senate Doc. 40, 23d Cong., 2d sess., contains a report of Mr. Clay,
from the Committee on Foreign Relations, on the President's message
of December, 1834, closing with the resolution << that it is inexpedient,
at this time, to pass any law vesting in the President authority for
making reprisals on French property in the contingency of provision not
being made for paying to the United States the indemnity stipulated by
the treaty of 1831, during the present session of the French Chambers."
The report begins by stating an << entire concurrence with the President
as to the justice of the claims." The report proceeds to examine Mr.
Bives' negotiations with the French minister of foreign affairs, and states
that in this negotiation <Uhe King manifested the most friendly feeling
toward the United States." It explains the unfriendly action of the
House of Delegates as due in part to ^^ deep-rooted prejudice," in part to
indiscreet publication of dispatches of the American negotiators. The
Dulure on the part of the French Government to secure favorable action
was held by the committee to be attributable to the fact that ^^ during
obtain seasons of the year legislative labors are habitually suspended ; "
that the Government was obliged to proceed with *< great circumspec-
tion ; " ^' that a special call of the Chambers would not be attend^ with
the benefits expeicted from it at Washington." The committee then say
thaf if these reasons are not sufficient to command conviction^ • • •
they ought to secure acquiescence in the resolution of the King not to
hazard the success of the bill by a special call of the French legislature
at an unusual season of the year." ^^ It is conceded that the refusal of one
I>ortion of a foreign Government, whose concurrence is necessary to
carry into effect a treaty with another, may be regarded, in strictness.
as tantamount to a refusal of the whole Government." But it is argued
that a refusal by a majority of 8 in a house of 344 members ought not
to be treated as final. On the subject of reprisals in general the report
proceeds to say :

" In recommending adherence yet longer to negotiation for the pur-
poses indicated, the committee are encouraged by the past experience
of this Government. Almost every power of Europe, especially daring
the wars of the French Kevolution, and several of those of the new states
on the American continent, have, from time to time, given to the United
States just cause of war. Millions of treasure might have been ex-
pended, and countless numbers of human beings been sacrificed, if the
UnitNl States had rashly precipitated themselves into a state of war
opon the occurrence of every wrong. But they did not; other and more
moderate and better counsels prevailed. The result attested their wis-
dom. With most of the powers, by the instrument of negotiation, ap-
pealing to the dictates of reason and of justice, we have happily compro-
mised and accommodated all difficulties. Even with respect to France,
after negotiations of near a quarter century's duration ; after repeated
admissions, by successive Governments of France, of the justice of some
portion of oar claims, bat after various repulses, under one pretext or

$ 318.] PACIFIC UETH0D8 OF BEDBE8S. [CHAF. XT.

anotber, we hare advanced, not retrograded. France, by a solemn treaty,
has admitted the jnstice, and stipulated to pay a specific snm in satis-
faction, of oar claims. Whether this treaty is morally andabsolutely
binding npon the whole French people or not, it is the deUt>erat« act of
the royal executive branch of the French Qovernmeut, which speaks,
treats, and contracts with all foreign nations for France. The execu-
tion of the stipulations of snch a treaty may be delayed — postponed, as
wc have seen — contrary tothewisl^ of the King's Government; bat
sooner or lat«r they most be fulfilled, or France mast submit to the de-
grading stigma of bad faith.

" Having expressed these views and opinioBS, the committee might
content themselves and here conclude : bat they feel called upon to say
something upon the other branch of the alternative, stated in the oat-
set, as having been presented by the President of the United States to
the consideration of Congress. The President is onder a conviction
that the United States onght to insist on a prompt execution of the
treaty; and, in case it be refused, or longer delayed, take redress in
their own hands. He accordingly recommends that a law be parsed,
authorizing reprisals upon French property in case provision shall not
be made for the payment of the debt at the approaching session of the
French Chambers. This measure be deems of *a pacific character, and
he thinks it may be resorted to without giving just cause of war.

'• It is true that writers on the public law speak and treat of repri-
sals as a peaceful remedy^ in cases which they define and limit. It is
certainly a very compendious one, since the injured nation has only to
anthorize the seizore and sale of sufQcient property of the debtor na-
tion, o^ its citizens, to satisfy the debt due ; and, if it quietly submit to
the process, there is an end of tbebnsiness. In that case, however, we
Bboold feel some embarrassment as to the exact amount of the French
debt for which we should levy, because, being payable in six install-
ments, with interest, computed from the day of the exchange of tbe rati-
fications of the treaty (February, 1832), only two of those installment
are yet due. Should we enlorce payment of those two only, and resort
to the irritating, if not hazardous, remedy of reprJsalo, as the others
shall successively fall due : or, in consequence of de&ult in the pay-
ment of tbe first two, consider them all now due and levy for the whole f

'■ Reprisals do not of themselves produce a state of public war ; but
they are not unlirequently the immediate itrecursor of it. Wbeu they
are accompauied with an authority, from the Gkivemment which ad-
mits them, to employ force, they are believed iuvariably to have led to
wur in all cases where the nation against which they are directed is
able to make resistance. It is wholly inconceivable that a powerful
and chivalrous nation, like France, would submit, without retaliation,
to the seizure of the property of her unoffending citizens, pursuing their
lawful commerce, to pay a debt which the popular branch of her legis-
lature had refused to acknowledge and provide for. It cannot be sup-
posed that France would tacitly and quietly assent to the payment of
ft debt to the United States, by a forcible seizure of French property,
which, alter full deliberation, the Ghambei-s had expressly refused it»
«ousent to discharge. Betaliation would ensue, and retaliation would
inevitably terminate in war. In the instauce of reprisals made by France
upon Portugal, cited by the President, the weakness of this power, con-
vulsed and desolated by the ravaees of civil war, safficieatly accounts
for the fact of their being submitted to, and not producing a state of
general hostilities between the two nations.

CHAP. XV.J RETORSION AND REPRISAL. [§ 318.

^^Beprisals so far partake of the character of war^ that they are au
appeal from reason to force j from negotiation, devising a remedy to be
applied by the common consent of both parties, to self-redress carved
out and regulated by the will of one of them 5 and, if resistance be made,
they convey an authority to subdue it by the sacrifice of life, if nec-
essary.

^^ The framers of our Constitution have manit(dsted 4;heir sense of the
nature of this power, by associating it in the same clause with grants
to Congress of the power to declare war, and to make rules concerning
captures on land and water.

'^Without dwelling further on the nature of this power, and under a
full conviction that the practical exercise of it against France would in-
volve the United States in war, the committee are of opinion that two
considerations decisively oppose the investment of such a power in the
President, to be used in the contingency stated by him.

^' In the first place, the authority to grant letters of marque and re-
prisal, being specially delegated to Congress, Congress ought to retain
to itself the right of judging of the exp^ency of granting them, under
all the circumstances existing at the time when they are proposed to be
actually issued. The committee are not satisfied that Congress can,
constitutionally, delegate this right. It is true that the President pro-
poses to limit the exercise of it to one specified contingency. But if
the law be passed, as recommended, the President might, and probably
would, feel himself bound to execute it, in the event, no matter from
what cause, of provision not being made for the fulfillment of the treaty
by the French Chambers, now understood to be in session. The com-
mittee can hardly conceive the possibility of any sufftcient excuse for a
fEulnre to make such provision. But, if it should unfortunately occur,
they think that, without indulging in any feeling of unreasonable dis-
trust towards the Executive, Congress ought to reserve to itself the
eonstitntional right, which it possesses, of judging of all the circum^
stances by which such refusal might be attended ; of hearing France,
and of deciding whether, in the actual posture of things, as they may
then exist, and looking to the condition of the United States, of France,
and of Europe, the issuing of letters of marque and reprisal ought to be
authorized, or any other measure adopted.

*^In the next place, the President, confiding in the strong assurances
of the Bang's Government of its sincere disposition to fulfill, faithfully,
the stipulations of the treaty, and of its intention^ with that view, of
applying again to the new Chambers for the requisite appropriation,
very properly signified during the last summer, through the appropriate
organs at Washington and Paris, his willingness to await the issue of
this experiment. Until it is made, and whilst it is in progress, nothing,
it seems to the committee, should be done, on our part, to betray sus-
picious of the integrity and fidelity of the French (Government ; noth-
ing, the tendency of which might be to defeat the success of the very
measure we desire. This temporary forbearance is the more expedient,
since the French Government has earnestly requested that we should
avoid 'all that might become a cause of fresh irritation between the two
countries, compromit the treaty, and raise up an obstacle, perhaps in-
snrmountable, to the views of reconciliation and harmony which ani-
mate the £ing'B council.'"

"The people of the United States are justly attached to a pacific
system in their intercourse with foreign nations. Ittis proper, there-
fore, that they should know whether their Government has adhered to

§318.] PACIFIC METHODS OF REDRESS. [CHAP. X^.

it. In the present instance it has been carried to the utmost extent
that was consistent with a becoming self-respect. The note on the 29th
of January, to which I have before alluded, was not the only one which
our minister took upon himself the responsibility of presenting on the
same subject and in the same spirits Finding that it was intended to
make the payment of a just debt dependent on the performance of a
condition which he knew could never be complied with, he thought it
a duty to make another attempt to convince the French Government
that, while self-respect and regard to the dignity of other nations would
always prevent us from using any language that ought to give offense,
yet we could never admit a right in any foreign Government to ask
explanations of or interfere in any manner in the communications
which one branch of our public councils made with another ; that in
the present case no such language had been used, and that this had, in
a former note, been fully and voluntarily stated before it was contem-
plated to make the explanation a condition ; and that there might be
no misapprehension, he stated the terms used in that note, and he offi-
cially informed them that it had been approved by the President, and
that therefore every explanation which could reasonably be asked or
hoDorably given had already been made ; that the contemplated measure
had been anticipated by a voluntary and friendly declaration, and was,
therefore, not only useless but might be deemed offensive, and certainly
would not be complied with if annexed as a condition. • • •

^' The result of this last application has not yet reached us, but is daily
expected. That it may be favorable is my sincere wish. France hav-
ing now, through all the branches of her Government, acknowledged the
validity of our claims, and the obligation of the treaty of 1831, and
there really existing no adequate cause for further delay, will at length,
it may be hoped, adopt the course which the interests of both nations,
not less than the principles of justice, so imperiously require. The treaty
being once executed on her part, little will remain to disturb the friendly
relations of the two countries ; nothing, indeed, which will not yield to
the suggestions of a pacific and enlightened policy and to the influence
of that mutual good will and those generous recollections which we
may confidently expect will then be revived in all their ancient force.
In any event, however, the principle involved in the new aspect which
has been given to the controversy, is so vitally important to the inde-
pendent administration of the Government that it can neither be sur-
rendered nor compromitted without national degradation. I hope it is
unnecessary for me to say that such a sacrifice will not be made through
any agency of mine. The honor of my country shall never be stained
by an apology irom me for the statement of truth and the performance
of duty ; nor can I give any explanation of my official acts, except such
as is due to integrity and justice, and consistent with the principles on
which our institutions have been framed. This determination will, I
ftDi confident, be approved by my constitutents. I have, indeed, studied

CHAP. XV.] RETORSION AND REPRISAL. f§ 318,

their character tx> but little purpose if the sum of twenty-five millions of
francs will have the weight of a feather in the estimation of what apper-
tains to their national independence, and if, unhappily, a dilferent im-
pression should at any time obtain in any quarter, they will, I am sure,
rally round the €k)vemment of their choice with alacrity and unanim-
ity, and silence forever the degrading imputation." '

President Jackson, Seventh Annnal Message, 1835.

<* While France persists in her refusal to comply with the terms of
a treaty, the object of which was, by removing all causes of neutral
complaint, to renew ancient feelings of friendship, and to unite the two
nations iu the bonds of amity and of a mutually beneficial commerce,
she cannot justly complain if we adopt such peaceful remedies as the
law of nations and the circumstances of the case may authorize and
demand. Of the nature of these remedies I have heretofore had occasion
to speak, and, in reference to a particular contingency, to express my
conviction that reprisals would be best adapted to the emergency then
contemplated. Since that period, France, by all the departments of her
Government, has acknowledged the validity of our claims, and the ob-
ligations of the treaty, and has appropriated the moneys which are
necessary to its execution ; and though payment is withheld on grounds
vitally important to' our existence as an independent nation, it is not to
be believed that she can have determined permanently to retain a posi-
tion so utterly indefensible. In the altered state of the questions in
controversy, under all existing circumstances, it appears to me, that,
antil such a determination shall have become evident, it will be proper
and sufficient'to retaliate her present refusal to comply with her engage-
ments, by prohibiting the introduction of French products and the enti^
of French vessels into our ports. Between this and the interdiction of
all commercial intercourse, or other remedies, you, as the representa-
tives of the people, must determine. I recommend the former in the
present posture of our affairs, as being the least injurious to our com-
merce, and as attended with the least difficulty of returning to the
usual state of friendly intercourse, if the Government of France shall
render us the justice that is due; and also as a proper preliminary step
to stronger measures should their adoption be rendered necessary by
subsequent events." '

President Jackson's '' Fiench " message, Jan. 15, 1836. See stipra, $ 148.
For the correspondence of Mr. Livingston, minister to France, with the French
Goremment, see iupra, $ 79.

^< The Government of Great Britain has offered its mediation for the
adjustment of the dispute between the United States and France.
Carefully guarding that point in the controversy which, as it involves
our honor and independence, admits of no compromise, I have cheer-
fully accepted the offer. It will be obviously improper to resort even
to the mildest measures of a compulsory character, until it is ascer-

^318.] PACIFIC METHODS OF REDRESS. [CHAP. XV.

tallied wlietber France baa declined or accepted tbe mediation. I, there-
fore, recommend a snspension of all proceedings on that part of my
special message of tbe 16th of Jaaaary last which proposes a partial
QOD-interconrse with France."

Preaidmil Jackson, special message, Feb. 8, 1836. See as to mediation, aapra,

Mr. Baokhead, British cbarg^ d'affaires at Washington, on Febraary
16, 1836, addressed the following note to Mr. Forsyth, Secretary of
State:

'' The andersigned. His Britanuic Majesty's charge d'afifoires, with ref-
erence to his note of tbe 27tb of last month, has the honor to inform Mr.
Forsyth, Secretary of State of the United States, that he has been in-
structed by his G<>vernment to state that the British Government has
t:eceived a communication from that of France, which fblfllls the wishes
that impelled His Britannic Majesty to offer bis mediation for the pur-
pose of effecting an amicable adjustment of the difference between
France and the United States.

" The French Government has stated to that of His Majesty that the
frank and honorable manner in which the President has, in his recent
message, expressed himself with regard to the points of difference be-
tween the Governments of France and of the United States, has re-
moved those difflcnities upon the score of national honor which have
hitherto stood in the way of the prompt execution by France of the
treaty of the 4th July, 1831, and that, consequently, the French Gov-
ernment is now ready to pay the installment which is due on account of
tbe American indemnity whenever the payment of that installment
shall be claimed by the Government of the United States.

"The French Government has also stated that it made this commn-
oication to that of Great Britain, not regarding the British Government
as a formal mediator, since its offer of mediation had then reached only
the Government of France, by which it had been accepted, bnt looking
upon the British Government as a common friend of the two parties,
and, therefore, as a natural channel of communication betwetm them.

" The undersigned is further instructed to express the sincere pleas-
ure which is felt by the British Government at the prospect thus af-
forded of an amicable termination of a difference which has prodaced
a lemporary estrangement between two nations which have so many
interests in common, and who are so entitled to the friendship and esteem
of each other ; and the undersigned has also to assure Mr. Forsyth that
it has afforded the British Government the moat lively satisfaction to
have been, upon this occasion, the channel of acommunication which, they
trust, will lead to the complete restoration of friendly relations between
the United States and France."

Honse Ex. Doc. 116, 34th Cong., lat seas.

"Our Oovemment are in a great alarm lest this dispute between the
French and Americans shonld produce war, and the way in which we
should be affected is this ; Our immense manufacturing population is
dependent upon America for a supply of cotton, and in case of any ob-
struction to that supply multitudes would be thrown out of employ-
ment and incalculable distress would follow. They think that the
French would blockade the American ports, and then such obstruction
would be inevitable. A system like ours, which resembles a vast piece
of machinery, no part of which can be disordered without danger to the
96

CHAP. XT. J RETORSION AND REPRISAL. [§318.

whole, most be always liable to interraption or injury from caudes over
which we have no control, and this danger mast always attend the exten-
sion of oar manafactnring system to the prejadice of other interests ; so
that in case of a stoppage or serious interraption to the current in which it
flows, the consequences woald be appalling ; nor is there in any probabil-
ity a nation on the continent (our good ally, Louis Philippe, included)
that would not gladly contribute to the humiliation of the power and
diminution of the wealth of this country."

Greyille'B Journal, Deo. 10, 11, 1855.

" In every case, particularly where hostilities are contemplated or
appear probable, no Government should commit itself as to what it will
do under certain future contingencies. It should prepare itself for every
contingency — launch ships, raise men and money, and reserve its final
decision for the time when it becomes necessary to decide and simul-
taneously to act. The proposed transfer by Oongress of its constitu-
tional powers to the Executive, in a case which necessarily embraces
the question of war or no war, appears to me a most extraordinary pro-
posal, and entirely inconsistent with the letter and spirit of our Oonstitu-
tion, which vests in Congress the power to declare war and to grant
tetters of marque and reprisal.^

Mr. Gallatin to Mr. Everett, Jan. 5, 1838. 2 Gallatin'b Writings, 475.
At to Mr. GaUathi'a viewa, see further, supra, i 222, See also criticism in 3
PhiU. Int. Jiaw (3d ed.), 41.

«^ The President (General Jackson), has recommended a law author-
izing reprisals upon French property. Such property can be captured
or seized only on the high seas, or within our own jurisdiction."

Mr. Gallatin to Mr. Everett, Jan. 5, 1835. 2 Gallatin's Writings, 475.

For the opinion of Mr. Wheaton on this topic, see supra, $ 9.

For a sammary of the proceedings nnder the treaty of 1832, see supra, $ 148o.

President Buchanan, in his annual message on December 9, 1859, in
view of the political chaos then existing, and which had for so long ex-
isted, in Mexico, and of the enormous indebtedness of Mexico to the
United States for si)oliations, recommended Congress to pass a law au-
thorizing the sending to Mexico a sufficient military force to secure in-
demnity, which could not be enforced by diplomatic pressdre, and to
produce security on the border line. Such a step, he argued, would
tend, incidentally, to sustain the constitutional Government of Juarez
against such aggressions of European sovereigns as the helpless con-
dition of Mexico would be likely to invite. Congress, however, did not
act upon this proposal, and shortly afterwards began the intrigues of
Napoleon III, which, after our own civil war had relieved him from onr
active antagonism, resulted in the expedition of Maximilian. On De-
cember 14, 1859, however, before the interference began to be percepti-
ble, Mr. McLane, then United States minister at Mexico, signed, under
instructions from the President, a treaty of transit and of commercts
which was followed by a convention to enforce treaty obligations, and
to aid in producing such order on the border as would best promote the
firiendly relations of the two countries. Neither treaty nor convention,
however, was approved by the Senate of the United States.

**A convention was made at London, on the 31st October, 1861, he-
tween Great Britain, France, and Spain, professedly for the purpose of
obtaining redress and security from Mexico for citizens of the coii-

a Mis. 162— VOL. ni 7 ^^

§ 318.] PACIFIC METHODS OF REDRESS. [CHAP. XV.

tractiiig" powers. The claim was declared to be, that bonds of the
Mexican Government were held by citizens of those countries, for which
the Mexican Government had neglected to provide payment, and which
it was iioabtful if Mexico had either the ability or willingness to pay.
Injuries^ it was declared, had been inflicted on citizens of those coun-
tries residing in Mexico, in their persons and property, by powers in
possession of the Government, for which no redress «^ould be obtained.
In geueral, the object of the convention was declared to be ^to demand
more efficacious protection for the persons and property of their sub-
jects, as well as the fulfillment of the obligations contracted towards
their Majesties.' The second article of the convention declares that the
contracting parties ^engage not to seek for themselves, in the employ-
ment of the contemplated coercive measures, any acquisition of terri-
tory, or any special advantage, nor to exercise in the internal affairs of
Mexico any influence of a nature to prejudice the right of the Mexican
nation to choose and constitute the form of its government.' The con-
vention provided for such occupation of territory and 'such other op-
erations' as should be judged suitable to secure its objects.

'^ It is clear that this convention authorized a war of conquest upon
Mexico, with no limitation except such as might be afforded by the
agreement of the allies to leave the conquered people free to choose and
constitute their own form of government The payment of debts might
indeed be obtained from the existing Government, but the other ob-
ject— permanent protection for the persons and property of resident
foreigners^-could, in the opinion of the parties to the convention, be
secured only by a change of Government. The second article, there-
fore, assumed that there would be such a change, and declared only
that it should be effected by the Mexicans themselves. The convention
may, therefore, be said to have contemplated an armed occupation of
Mexico, until the people should have adopted such a Government as, in
the o])inion of the allies, would be responsible and stable.

" Provision was made in the treaty for the accession of the United
States as a fourth party, but it was to become a party to a treaty the
terms of which the other parties had already settled, and even after its
execution had begun. The note from the three powers, inviting the
United States to join, was dated a month after the date of the treaty.
The United States were sensitive to the intervention of European mon-
archies in the internal affairs of a neighboring liepublio on the Ameri-
can continent ; and the Secretary of State, Mr. Seward, endeavored to
remove the more definite and specific occasion for the enterprise, by an
arrangement with Mexico, by which the United States should give her
such aid as would enable her to discharge the just pecuniary demands
of the three powers. The United States minister at Mexico was au-
thorized by the President to make a treaty to that efl'ect. In Mr. Sew-
ard's reply (bearing date Dec. 4, 1861), to the note from the three pow-
ers, inviting the co-operation of the United States, he informs them of
this contemplated arrangement, and expresses the hope that it will
remove the necessity for the proposed intervention. This was immedi-
ately rejected as unsatisfactory by each of the three powers. • • •

<<As might have been expected from these antecedents, a question
soon arose among the allies as to how far they should go in exercising
coercion upon Mexico, and what should be the test and rule of their
forcible interference in her internal a.flairs. At a conference held at
Orizaba on the 9th April, 1862, the Spanish and English commisMoners,
objecting that the French had gone beyond the terms of the conven-

CHAP. XV.] RETORSIOX AND EEPEISAL. [§318.

tiou in giving military aid to the party in favor of establishing an Im-
perial Government, withdrew from further co-operation. Their course
was approved by their respective Governments, The French Govern-
inent« whose pecuniary claims upon Mexico were mucli smaller than
those of the other powers and more questionable, left to itself in Mex-
ico, proceeded, by military aid to the Imperialist party, to establish
that party in possession of the capital; and, under the protection of
the French forces, an assembly of notables was called, which had been
elected and designated by the Imperialist party, without even the
pretense of a general vote of the Mexican people; and this assembly
undertook to establish an imperial form of government, and to offer
the throne to the Archduke Maximilian of Austria. The Emperor of
the French treated this as a conclusive expression of the will of the
Mexican people, acknowledged the new sovereign at once^ and entered
into a treaty with him for military aid to secure his authority.

'^ The position taken by Mr. Seward in 1862 was that the explana-
tions given by the French Emperor to the United States made the
French intervention a war upon Mexico for the s^tlement of claims
which Mexico had not met to the satisfaction of France. This explana-
tion the United States relic^l upon, and did not intend to interfere be-
tween the belligerents. (Mr. Seward to Mr. Dayton, June 21, 1862;
August 23, 1862 ; and November 10, 1862. U. S. Dip. Corr., 1862.)

'^ On the 4th of April, 1864, the House of Bepresentatives passed a
resolution, by unanimous vote, denouncing the French intervention in
Mexico ; but these resolves were not acted upon by the Senate, and the
position of the Government continued to be that of recognizing a war
made by France upoa Mexico for professed international objects of
which we did not assume to judge, accompanied with a military occu-
pation of a large part of Mexico by the French, which we recognized as
one of the facts of the war. But the Government steadily refused to
reganl the Empire as established by the Mexican people, and treated
Maximilian as a kind of provisional' ruler established by the French in
virtue of their military occupation;"

Dana's Wheaton, $ 76, note 41. See further, supraj i$ 58, ftXl,

That the French Government in 1803 assured the Government of the
United States that the French invasion of Mexico was only for the pur-
pose of ^' asserting just claims due her (France) and obtaining payment
of the debt due," see Mr. Seward, Sec. of State, to Mr. Dayton, May 8,
1863. MSS. Inst., France ; For.Bel. 1863, quoted, supra, § 58.

In 1860 certain large sums of money having been forcibly taken by
the then Government of Mexico from the British legation in Mexico,
Mr. O, Wyke was authorized by Lord John Bussell, in case of refusal
by the succeeding (constitutional) Government to indemnify for the
spoliation, to ^^ apprise the Mexican Government that you are author-
ized and enjoined at once to call upon Her Majesty's naval forces to
support, and if necessary to enforce, your demand for reparation."

Brit, and For. St. Pap., 186W62, 239. See as to this procedure, supra^ $$ 5d,
222, 232 ; Abdy's Kent. (1873). 75.

The joint action in 1861 of France, Spain, and England, by which
they declared it was necessary to resort to " positive measures to
demand a more efiBcacious protection for the persons and goods of their
sabjects, as well as for the fulfillment of the obligations contracted by
Mexico to such subjects," is discussed by Calvo, droit int., 3d ed., vol.

§ 318.] PACIFIC METHODS OP REDRESS. [CHAP. XV;.

3, 50. A divergence of opinion, according to his statement, existed be-
tween the commissioners, and England and Spain withdrew, leaving
France to proceed on her own line. England secured most of her ob-
jects, bat France was involved in a bootless war.

The qnestion of extreme measures to collect international claims is discussed^
»upra, i 22iL

Beprisals or war will not be resorted to in order to compel payment
of damages dae for tort to a citizen of the United States by a foreign,
nation unless no other mode of prosecution remains.

Mr. Sewardy Seo. of State, report Mar. 30, 1661. MSS. Report Book. Supra, ^
222.

As an act of reprisal may be mentioned the attack on Oreytown. See*
supray §§ 50d, 224, 'Sl5d.

^' The act of Mar(;h 3, 1815, having premised that the Dey of Algiers
had commenced a predatory warfare against the United States, gave to
the President the same authority as in the preceding case of Tripoli, to.
instruct the commanders of public armed vessels, and to grant commis-
sions to the owners of privat-e armed vessels, to subdue, seize, and make
prize of all vessels, goods, and effects of or belonging to the Dey of
Algiers or to his subjects. (3 Stat. L., 230.)

^^ There were no reprisals authorized in terms by the United States in«
the war with Mexico, which was declared by the law of May 13, 1846,.
to exist by the act of the Bepublic of Mexico. (9 ibid., 9.) Mexican
property found at sea was, of course, subject to capture by our ships of
war ; but no commissions were granted to privateers.

^^ Mr. Wheaton has referred (part i, chap. 2, § 11, iv, 57) to the suc-
cessful demand against the restored Governments for indemnifications^
for spoliations on our commerce, in cases where the wrong was inflicted
by rulers who had temporarily superseded the legitimate sovereign, and
his own negotiations with Denmark (part iv, chap. 3, I 32^, are anothe<*
illustration of the perseverance with whicn ihe ciaioisot' their merchant's'
were sustained by successive Administrations of the American Govern-
ment.'^

Lawrence's Wheaton (ed. 1863), 507, 50a

The British government in 1840 made the capture of several Near
politan vessels on account of a grant of monopoly for the sulphur pro-
duced and worked in Sicily contrary, it was alleged, to the commercial
treaty between England and Naples of 1816. The difficulty was settled
by the mediation of France.

Phill. Int. Law, vol. iu, 27.

<^ In 1847 a motion was made in the House of Commons for reprisals
on account of unpaid Spanish bonds. It was conceded that such a
course would be justified by the principles of international law, but it
was resisted on the ground of expediency. In 1850 reprisals, which
afterward became the subject of parliamentary discussion and of com-
plaint by France, were resorted to by England on account of the claims-
for property alleged to have been destroyed at Athens by a mob, aided
by Greek soldiers and gendarmes, belonging to one Pacifico, a British'
subject from being a native of Gibraltar. 'The real question of inter-
national law in this case,' says Phillimore, ^ was whether the state of the^

100

«HAP. XV.] KET0R8I0N AND REPRISAL. [§ 318.

<7reek tribanals was such as to warrant the English foreign minister
in insisting upon M. Pacifico's demand being satisfied by the Greek
Government before that person had exhausted the remedies which, it
must be presumed, are afforded by the ordinary legal tribunals of every
•civilized state. That M. Pacifico had not applied to the Greek courts of
law for redress appears to be an admitted fact.' Though Greece was
<^mpelled to accept the conditions of England the commissioners ap-
pointed to examine the claim awarded only £150 instead of £21,295 Is.
4d., which was demanded. Phillimore, as to the point whether the state
of the courts rendered it a mockery to expect justice at their hands,
adds: ^The international jurist is bound to say that the evidence pro-
duced does not appear to be of that overwhelming character which alone
-could warrant an exception from the well known and valuable rule of
international law upon questions of this description.' (JTMd., 29.)"

Lawrence's Wheaton (ed. 1863), 509.

For a fuller acconnt of the leprisals on Neapolitan Teasels and of the discussion
relative to the Spanish bonds, see 1 Halleck's Int. Law (Baker's ed.), 435.

'^Beciprocating to the subjects of a nation, or retaliating on them its
nnjust proceedings towards our citizens, is a political and not a legal
measure. It is for the consideration of the Government, not of its
courts. The degree and the kind of retaliation depend entirely on con-
siderations foreign to this tribunal. It may be the policy of the nation
to avenge its wrongs in a manner having no affinity to the injury sus-
tained, or it may be its policy to recede from its full rights, and not to
avenge them at all. It is not for the courts to interfere with the pro-
ceedings of the nation and to thwart its views. * * * If it be the
will of the Government to apply to Spain any rule respecting captures
which Spain is supposed to apply to us, the Government will manifest
that will by passing an act for that purpose. Till such an act be passed,
the court is bound by the law of nations, which is a part of the law of
the land."

Marshall, C. J. ; The Nereide, 9 Cranch, 422.

The law of nations does not allow reprisals, except in cases of violent
injuries directed and supported by the state, and the denial of justice
by all the tiibunals and the prince.

1 Op., 30, Randolph, 1793.

As to measures to enforce international indebtedness, see siipra, $ 222.

'*The law of war can no more wholly dispense with retaliation than
can the law of nations, of which it is a branch. Yet civilized nations
acknowledge retaliation as the sternest feature of war. A reckless enemy
often leaves to his opponent no other means of securing himself against
the repetition of barbarous outrage.''

Instrnctlons for the goTemment of armies of the United States in the field. 2
Halleck's Int. Law (Baker's ed.), 38.

The King of Prussia, in 1753, "resorted to reprisals, by stopping the
interest upon a loan due to British subjects, and secured by hypotheca-
tion upon the revenues of Silesia, until he actually obtained firom the

101

§ 3 1 8.] PACIFIC METHODS OF REDRESS. [CHAP. XV.

British Goverument an indemuity for tbo Prussian vessels unjustly
captured and condemned" by a British prize court,

2 HaUeck's Int. Law (Baker's ed.), 431.

"Reprisals," says Vattel (Droit des Gens, liv. ii, chap, xviii, sec. 342)^
^*are used between nation and nation in order to do themselves justice^
when they cannot otherwise obtain it. If a nation has taken possession
of what belongs to another; if it refuses to pay a debt or repair an in-
jury, or to make a just satisfaction, the latter may seize what belongs-
to the former, and apply it to its own advantage, till it obtain full pay-
ment for what is due, together with interest and damages, or keep it a»
a pledge till the offending nation has made ample satisfaction. The
effects thus seized are preserved while there is any hope of obtaining
satisfaction or justice. As soon as the hope disappears they are confis-
cated, and then the reprisals are accomplished. If the two nations,,
upon this ground of quarrel, come to an open rupture, satisfaction is-
considered as refused from the moment that the war is declared, or
hostilities commenced; and then, also, the effects seized may be con-
fiscated." " These remarks," says General Halleck, when commenting od
this passage (I Halleck's Int. Law (Baker's ed.), 434), "are more particu-
larly applicable to general reprisals, although, even then, sequestration
sometimes immediately follows the seizure. Where such extreme meas-
ures are resorted to, it is not easy to distinguish between them and
actual hostilities. But in special reprisals, made for the indemnification
of injuries upon individuals, and limited to particular places and things,
immediate confiscation is more frequently resorted to. Thus, Cromwell
having made a demand on Cardinal Mazarin during the minority of
Louis XIY, for indemnity to a Quaker, whose vessel had been illegally
seized and confiscated on the coast of France, and receiving no reply
within the three days specified in the demand, dispatched two ships-of-
war to make prize of French vessels in the channel. The vessels were
seized and sold, the Quaker paid out of the proceeds the value of his>
loss, and the French ambassador apprised that the residue was at hi»
service. This substantial act of justice caused neither reclamation nor
war."

"Betorsion and reprisal bear about* the same relation to arbitratiou
and war, as the personally abating a nuisance does to a suit for it« re-
moval. States as well as individuals have a right to protect themselves
when injustice is done them by removing the cause of offense ; and that
in disputes between nations this right is more largely extended than
in disputes between individuals, is to be explained by the fact that in
disputes betweeu nations there are not the modes of redress by litiga-
tion which exist in suits between individuals. ^Retorsion' and ^re-
prisal' are often used convertibly ; though the difference is that * retor-
sion' is retaliation in kind, while ^reprisal' is seizing or arresting the
goods or trade of subjects of such state as set-off for the injuries re-
ceived. Under this head fall embargoes, and what are called pacific
blockades {blocus pacifique)^ by the former of which trade is forbidden
with the offending state; by the latter of which a port belonging to
the offending state is closed to foreign trade. These acts approach in
character to war, to which they generally lead ; yet technically they
are not war, and there are cases where the remedy has been applied
without war resulting."

VVhart. Com. Am. Law, ^ 20(5. As to " pacific blockades/' see ivfra, ^ 3G4.
102

CHAP. XV.] , NON-INTERCOURSE. [§ 319.

V. NON'iyXERCOUJRSE.
§319.

After the attack on the Chesapeake, in 1807, the President issued a
proclamation excluding British war-vessels from the harbors of the
United States.

See antpra, $ 315 (, infraf $ 331.

This was regarded by Mr. Canning as an act of retaliation.

See Mr. Canning to Mr. Monroe, Sept. 23, 1807. 3 Am. Si. Pap. (For. Rel.), 200.
For detail, see 9upra, $ 315^ ; infraj $ 331. See Mr. F. Jackson's attitude in
this relation, aupra, $$ 107, 1G0(. See as to invasion of territorial waters,
f apm, $ 15.

The House Committee of Foreign Affairs, on November 22, 1808, after
reviewing the aggressions of both Great Britain and France on the com-
merce of the United States, reported in favor of prohibition of admis-
sion of vessels of Groat Britain or France, or of " any other of the
belligerent powers having in force orders or decrees violating the law-
ful commerce and neutral rights of the United States ; and also the
importation of any goods, wares, or merchandise, the growth, produce,
or manufacture of the dominions of any of the said powers, or imported
from any place in the possession of either.'' This conclusion, it is main-
tained, presented the only alternative to war.

Mr. John Randolph's speech, in 1806, on the nonimportation act is
reviewed in the Edinburgh Review for October, 1807. ( Vol. xi, 1.) Mr.
Randolph's speech, which took the ground 'Hhat the only barrier
between France and a universal dominion, before which America as
well as Europe must fall, is the British navy," was republished and
widely circulated in England. The Edinburgh Review, however, de-
Glared that Mr. Randolph was not to be regaled as representing the
United States, and that he was ^Hhe orator of a party professedly in

opposition to the Govemment."

•

«« The non-intercourse act of the United States (of 1809) put an en-
tire stop, for the next two years, to all commerce with that country,
during the most critical and important years of the war | and in its ulti-
mate results, contributed to produce that unhappy irntation between
the two countries, which has never yet, notwithstanding the strong
bonds of mutual interest by which they are connected, been allayed."

10 Alison's Hist, of Europe, S50.

'' Whatever pleas may be urged for a disavowal of engagements
formed by diplomatic-functionaries in cases where, by the terms of the
engagements, a mutual ratification is reserved, or where notice at the
time may hare been given of a departure from instructions, or in extra-
ordinary cases essentially violating the principles of equity, a disavowal
could not have been apprehended in a case where no such notice or vio-
lation existed, where no such ratification was reserved, and more especi-
ally where, as is now in proof, an engagement to be executed without any
such ratification was contemplated by the instructions given, and where
it had, with good faith, been carried into immediate execution on the

part of the United States.

10,3

§319.] PACIFIC METHODS OF BEDBESS. [^HAP. XV.

<' These considerations not having restrained the British Gk>vernment
from disavowing the arrangement by virtae of which its orders in conn-
cil were to be revoked, and the event authorizing the renewal of com-
mercial intercourse having thus not taken place, it necessarily became
a question of equal urgency and importance, whether the act prohibit-
injg^ that intercourse was not to be considered as remaining in legal force.
This question being", after due deliberation, determined in the affirmative,
a proclamation to that effect waB issued. It could not but happen,
however, that a return to this state of things from that which had fol-
lowed an execution of the arrangement by the United States would
involve difficulties. With a view to diminish these as much as possible,
the instructions from the Secretary of the Treasury, now laid before
you, were transmitted to the collectors of the several ports. If in per-
mitting British vessels to depart without giving bonds not to proceed
to their own ports, it should appear that the tenor of legal authority
has not been strictly pursued, it is to be ascribed to the anxious desire
which was felt that no individuals should be injured by so unforeseen
an occurrence ; and I rely on the regard of Congress for the equitable
interests of our own citizens to adopt whatever further provisions may
be found requisite for a general remission of penalties involuntarily in-
curred."

President Madison, First Annual Message, 1809.

It has already been noticed that Mr. Erskine, then British Minister
at Washington, wrote to Mr. Smith, then Secretary of State, on April
17, 1809, saying that considering the act passed by Congress on the 1st
of March, usually term^ the non-intercourse act, to have produced a
state of equality in the relations of the two belHgerent powers, he offered
an honorable reparation for the aggression that had been committed on
the United States frigate Chesapeake. This proposition having been
accepted the same day by the United States, Mr. Erskine, on April 18,
1809, wrote to Mr. Smith, saying :

^^ ^The favorable change in the relations of His Majesty with the United
States, which has been produced by the act (usually termed the non-inter-
course act) passed in the last session of Congress was also anticipated
by His Majesty, and has encouraged a further hope that a reconsidera-
tion of the existing differences might lead to their satisfactory ac^nst-
ment/ The snbsequept correspondence is noticed supra^ §§ 107, 1506.

^^The President, in his message at the opening of Congress, May 23,
1809, referred with great satisfaction to the renewal of the commercial
intercourse with Great Britain, and stated that the arrangement with
Mr. Erskine had been made the basis of communications to the French
Government. It was, however, disavowed by the British Government,
even as regarded the proposed reparation for the Chesapeake affair, and
the trade, that had been opened by the President's proclamation, was
again placed under the operation of the acts of Congress which had
been suspended. Both Governments took measures to prevent, as far
as possible, any inconvenience or detriment to the merchants ^ho had
acted on the supposed validity of the agreement.

104

CHAP. XT.] NON-INTEBCOUBSB, [§319.

^* Mr. CaDDing, in commuDicating on 27th of May, 1809, to Mr. Pink-
ney, the British order in couucii for that purpose, added : ^ Having had
the honor to read to yon in extenso the instructions with which Mr. Ers-
kiue was furnished, it is not necessary for me to enter into any expla-
natioD of those points in which Mr. Erskine has acted, not only not in
conformity, but in direct contradiction to them. I forbear equally with
troQbling yon with any comment on the manner in which Mr. Erskine's
coiumQQications have been received by the American Government, or
01)00 the terms and spirit of Mr. Smith's share of the correspondence.
Such observations will be communicated more properly through the
minister whom His Majesty has directed to proceed to America ; not
<>n any special mission (which Mr. Erskine was not authorized to prom-
ise, except upon conditions not one of which he has obtained), but as
' the SQocessor of Mr. Erskine, whom His Majesty has not lost a moment
in recalling.' ^

Lairrence's Wheaton (ed. 1863), 249-351, citing Parliamentary papers relating
to America, June 2, 1809, 2-4 ; Wait's St. Pap., vol. vii, 222, 230. See fur-
ther as to negotiations in respect to the Chesapeake, supra, H 107, lb05,
tn/ra, $331.

The respective policies of the United States and of Great Britain as
to maritime restrictions in 1808, are discussed with great ability by Mr.
Piokney, minister to Great Britain, in his correspondence with Mr. Mad-
isoD, Secretary of State, and Mr. Canning, foreign secretary in England.
Mr. Pinkney's letters, which do not fall within the scope of the present
volume to analyze and digest, will be fonnd in 3 Am. St. Pap. (For. Bel.),
^1/. See for farther correspondence same vol., 299 Jf.

As to these negotiations see $upra, $$ 107, 1505.

^ It seems to have been forgotten that from the time when Mr. Jeffer-
son became President till the month of Angnst, 1807, no actual ag-
gression on the neutral rights of America had been commiKed by
France ; whilst during the same x>eriod the nominal blockade of enemies'
ports by England, and the annual actual blockade, as they have been
called, of our own ; the renewal, contrary to express and mutual ex-
planations, of the depredations on the indirect colonial trade; the
continued impressments of our seamen, and the attack on the Chesa-
peake had actually taken place. During that period the laws, the
executive acts, the negotiations of the American Government could
have been directed to that Government alone from whom injuries had
been received. But from the time when the rights of the United States
were invaded by both the belligerents, every public measure has equally
embraced both ; the like efforts, founded on the same basis, have uni-
formly, though without success, been made to obtain redress from both ;
and the correspondence now published furnishes at least irrefragable
proofs of the earnest desire of Mr. Jefferson's administration to s^just
the differences with Great Britain, and of their disposition to reserve
for that purpose whatever might serve as the shadow of a pretense for
a denial of justice on her part."

Mr. GaUatin to the National Intelligencer, Apr. 24, 1810 ; 1 Gallatin's Works,
478.

"As respects your other query, I must say that I am very adverse to
restrictive commercial measures for any purpose whatever. Experience
must have taught us, beginning with the non-importation restrictions and

105

§319.] PACIFIC METHODS OF REDRESS. [CHAP. XV^

agreement which preceded the war of IndepeDdence, and ending with
the varions non-intercourse laws which were enacted between December^
1807y and June, 1812, how inefficient measures of this description gen-
erally are for the purpose of forcing another country to alter its policy.
It is true that they may occasionally offer a pretense for it when that
country already wishes to do it and only wants a pretense. Had the
official notice of the repeal of the Milan and Berlin decrees (for which
repeal some law of ours had oftered a pretense) reached England two-
months earlier, it may be that a timely repeal of the orders in council
would have prevented the war. Sometimes, also, if restrictions can be
applied immediately to the object in dispute (a retaliating tonnage dut}'^
so as to operate as direct reprisal, they may prove effective. In the
present instance they cannot be so applied, and I would doubt their
efficacy towards obtaining a prompt execution of the treaty. It would
have been much preferable to have been fully aware of the great and
intrinsic difficulties which stood between the signing of the treaty and
its being carried into effect^ and instead of increasing these to have used
some further forbearance, and, without recurring to any coercive or
restrictive measures, to have suffered the King of the French to man-
age the affair in his own way with the Chambers. Had that course been
pursued, there is no doubt that he would have continued to make every
exertion for obtaining their assent; and I am confident that the treaty
must infallibly have been ultimately ratified. The fundamental error,
on the part of our Government, consists in not having been sensible
that, in the present situation of France, the real power is not with the
King, but with the popular branch."

Mr. Gallatin to Mr. Everett, Jan. 1835 ; 2 Gallatin's Writings, 49*2.

On the subject of non-intercoarse with France, as suggested by (General Jacksoxv
on the spoliation issue, see tupra, $ 318.

As tenon* importation and non-exportation, see 1 John Adams's Works, 156, 157,
163; 2 ibid., 341,342,344,364,377,382,383.387,3(58,393,451,452,472; 4 ibid.,
34; 7 ibid., 299; 9 ibid,, 347,453,459,606,642.

The orders and decrees of the belligerent powers of Europe affecting the com-
merce of the United States are given in 3 Am. St. Pap. (For. Bel.), 242/.
"* Exclusion of offensive vessels of war from ports is vindicated by Mr. Madison^
Sec. of State, to Mr. Bose, British minister, Mar. 5, 1808. MSS. Inst., Or.
Brit. ; 3 Am. St. Pap. (For. Bel.), 214.

The correspondence in 1807-'08 between Mr. Armstrong, United States minister ii>
Paris, and M. Champagny (Duo de Cadore), as to French and British re-
strictions of neutral commerce, are to be found in 3 Am. St, Pap. (For. Bel.)>
242#.

The correspondence in 1808-'09, of Mr. Pinkney, United States minister at Lon-
don, with his own (^vemment, and with the British foreign secretary, ia
reference to British restrictions on the comqierce of the United States, i»
given in 3 Am. St. Pap. (For. Btel.),221#., 299 J., 363 J. See ••pra, ^ lASb,

The history and character of the British claim in 1805, to interdict to neutrals
commerce withlier enemies, is given in a memorial to Congress of Jan. 21,
1806, known to have been prepared by Mr. William Pinkney. Wheaton's
Life of Pinkney, 372. Infra, $ 388.

Mr. Calhoun's speech in the House on June 24, 1812, on the non-intercourse bill
is given in 2 Calhoun's Works, 20.

^'Anticipating that an attempt may possibly be made by the Cana-
dian authorities in the coming season to repeat their nnneighborly acts
towards onr fishermen, I recommend you to confer upon the Executive

106

CHAP. XV.] NON-INTERCOURSE. [§319.

the power to suspend, by proclamation, the operation of the laws au-
tboriziug the transit of goods, wares, and merchandise in bond across
the territory of the United States to Canada ; and further, should such
an extreme measure become necessary, to suspend the operation of any
laws whereby the vessels of the Dominion of Canada are permitted to
enter the waters of the United States.'^

President Grant, Second Annaal Message, 1S70.

Under the non-intercourse act of June 28, 1809 (2 Stat. L., 550), a ves-
sel coald not proceed to a prohibited port, even in ballast.

Ship Richmond v. U. 8., 9 Cranch, 102.

Under the same statute, an American vessel from Great Britain had
a right to lay off the coast of the United States to receive instructions
from her owners in New York, and, if necessary, to drop anchor, and in
ease of a storm to make a harbor; and if prevented by a mutiny of her
crew from putting out to sea again, might wait in the waters of the
United States for orders.

The U. 8. V. The Cargo of the Fanny, 9 Cranch, 181.

Fat cattle are provisions, or munitions of war, within the meaning of
the act of Congress of the 6th of July, 1812 (2 Stat. L., 728), " to pro-
hibit American vessels from proceeding to or trading with the enemies
of the United States, and for other purposes."

U. S.V. Barber, idt<2., 243. ' '

A British ship, coming from a foreign port, not British, to a port of
the United States, did not become liable to forfeiture under the non-
intercourse act of April 18, 1818, by touching at an intermc^diate British
closed port from necessity, in order to procure provisions, and without
trading there.

The Frances £li2a, 8 Wheat, 398.

The non-intercourse act of the 18th of April, 1818, did not prohibit
the coming of British vessels fh>m a British closed port, through a for-
eign port, not British, where the continuity of the voyage was actually
and fairly broken.

The Pitt, 8 Wheat., 371.

Purchases by neutrals, though bona fide for value, from persons who
had purchased in contravention of the statute of July 13, 1861, and the
subsequent proclamation of the President, making all commercial inter-
course between any part of a State where insurrection against the
United States existed and the citizens of the rest of the United States
"unlawful,^ were invalid, and the property so purchased was liable to
capture.

The Onachita Cotton, 6 Wall., 5£1.

107

§ 320.] PACIFIC METHODS OF RKDRFiW, [CHAP. XV.

The Govemment of the TTnited States has the right to permit limited
commercial intercoone with an enemy in time of war, and to impose
such conditions thereon as it sees fit. Whether the President, who is
coDStitntionally invested with the entire charge of hostile operations,
may exercise this power alone has been qnestioned ; bnt whether so or
not, there is no donbt that, with the concnrrent authority of the Con-
gress, he may exercise it according to his discretion.

Hftmilton v. Dniixi, 81 WaIL, 73-

VL EMBABaO,

§320.

The first embargo resolution adopted by Congress was that of March
26, 1794, laying an embargo on commerce for thirty days. The imme-
diate canse was the British orders of council of November 6, 1793, fol-
lowed by a reported hostile speech to Indian tribes by Lord Dorchester.
The expectation was that the measnre wonld lead to a restriction of the
supply of provisions totiie British West Indian fleet, though tiie letter of
the act operated equally against the French. On April 7, 1794, a resolu-
tion for a suspension of intercourse with Great Britain, so far as con-
cerns British productions, was introduced. This resolution, upon Pres-
ident Washington announciug a special mission to England (that of
Jay) for redress of grievances, was dropped.

The second embargo was in 1807. The Berlin decree of Napoleon
aud the British orders of council having been so interpreted as to ex-
pose the shipping of the United States to risks almost destructive. Pres-
ident Jefferson called a special meeting of Congress on October 25, 1807,
and, after reciting these menaces, and the spoliations to which they,
had already led, recommended '^an inhibition of the departure of- our
vessels from the ports of the United States." The Senate at once, at
a single secret session, by a vote of 22 to 6, passed a bill laying an em-
bargo on all shipping, foreign and domestic, in the ports of the United
States, with certain exceptions, ordering all vessels abroad to imme-
diately return. The House, with closed doors, passed the act, after a
debate of three days, by vote of 82 to 44. This act was repealed on
March 1, 1809.

The third embargo followed a message of President Madison of April
1, 1812, and was passed as a measnre preliminary to war, on April 6,
1812, and was followed on April 14 by an act prohibiting exportation
by land.

The fourth embargo was passed on December 17, 1813, while the war
with Great Britain was pending, and prohibited (the object being to
prevent the supply of the British blockading squadron) the exportation
of all produce or live stock, and for this purpose suspended the coast-
ing trade. On January 19, 1814, the President recommended the repeal
of the act, which was found very onerous, and the repeal passed Con-
gress on April 14.

The report of the Senate committee of April 16, 1808, on British and
French aggressions on American shipping, sustains the iMlicy of the
embargo, on the ground that it ^* withholds our commercial and agricul-
tural property from the licensed depredations of the great maritime bel-
ligerent powers." It was, however, recommended that the President

108

CHAP. XV.] EMBAB60. [ § 320.

should be authorized, on sach changes in foreign affairs as might make
it expedient, to suspend the embargo.

See 3 Am. St. Pap. (For. Rel.), 220 jf.

" When a war with England was seriously apprehended in 1794, 1
approved of an embargo as a temporary measure to preserve our seamen
and property, but not with any expectation that it would influence
England. I thought the embargo which was laid a year ago a wise and
prudent measure for the same reason, namely, to preserve our seamen
and as much of our property as we could get in, but not with the faint-
est hope that it would influence the British councils. At the same
time I confidently expected that it would be raised in a few months. I
have not censured any of these measures, because I knew the fond at-
tachment of the nation to them ; but I think the nation must soon be
convinced that they will not answer their expectations. The embargo
and the non-intercourse laws, I think, ought not to last long. They
will lay such a foundation of disaffection to the I^ational Government as
will give great uneasiness to Mr. Jefferson's successor, and produce
such distractions and confusions as I shudder to think of."

Mr. J. Adams to Mr. Vamnmy Deo. 26, 1608. 9 John Adams's Works, 606.

For an exposition of the ciroamstanoes under which the embargo statutes were
repealed, see Mr. Jefferson to Mr. Giles, Deo. 25, 1825. 7 Jeff. Works, 424,

^< ^ To repeal the embargo altogether would be preferable to either of
the other courses, but would, notwithstanding, be so fatal to us, in all
respects, that we should long feel the wound it would inflict, unless,.
indeed, some other expedient as strong, at least, and as efficacious m
all its bearings, can (as I fear it cannot) be substituted in its place.

'^ ^ War would seem to he the unavoidable result of such a step. If
our commerce should not flourish in consequence of this measure, notk-
iog would be gained by it but dishonor: and how it could be carried
on to any valuable purpose it would be difficult to show. If our com-
merce ^ould flourish in spite of French and British edicts, and the
miserable state of the world, in spite of war with France, if that should
happen, it would, 1. doubt not, be assailed in some other form. The
spirit of monopoly has seized the people and Government of this
country. We shall not, under any circumstances, be tolerated as rivals
in navigation and trade. It is in vain to hope that Great Britain will
voluntarily foster the naval means of the United States. Even as
allies we should be subjects of jealousy. It would be endless to enumer-
ate in detail the evils which would cling to us in this new career of vas-
salage and meanness, and tedious to pursue our backward course to the
extinction of that very trade to which we had sacrificed everything else..

'^^On the other hand, if we persevere we must gain our purpose at
last By complying with the little policy of the moment we shall be
lost. By a great and systematic adherence to principle we shall find
the end of our difficulties.'"

Mr. Pinkney's tIow of the embargo. 3 RandaU'e Jeffersooi 257.

Mr. Clay, Speaker of the House, in a private letter, dated March 15,.
1812, addressed to Mr. Monroe, Secretary of State, writes :

^^Slnce I had the pleasure of conversing with you this morning 1
have concluded, in writing, to ask a consideration of the following
propositions :

"That the President recommend an embargo to last, say, 30 days, by
a confidential message.

109

§ 320.] PACIFIC METHODS OF REDRESS. [CHAP. XV.

" That a termination of the embargo be followed by war.

"Tha4i he also recommend provision for the acceptance of 10,000 vol-
unteers for a short period, whose officers are to be commissioned by the
President.

V^The objection to the embargo is that it will impede sales. The

fdvantages are that it is a measure of some vigor upon the heels of
[enry's disclosure; that it will give tone to public sentiment, operate
as a notification, repressing indiscreet speculation, and enabling the
President to look to the probable period of the commencement of hos-
tilities, and thus to put under shelter before the storm. It will, above
all things, powerfully accelerate preparations for the war."

Mod roe MSS., Dept. of State.

^^ On April 1, 1812, the President sent a message to Congress, recom-
mending an embargo. Mr. Grundy said that he understood it was 'as
a war measure, and it was meant that it should directly lead to war,'
and Calhoun afterwards declared Mts manifest propriety as a prelude.'"

Von Hoist's Life of Calhoan, 19. *

As to embargo of 1808, see 9 John Adams's Works, 312, 604, 606, 607.

The correspondence, in 1808, of Mr. Pinkney, minister to London, with Mr.

Canning, as to modification of the embargo, is giren in 3 Am. St. Pap. (For.

Rel.), 223#.
The objections taken by the opposition in Congress to the first embargo an

given in Qoincy's Speeches, 31, 53, 247.
As giving the policy of the Administration, see 5 Jeff. Works, 227, 252, 258, 271,

289, 3:^6, 341, 352.
Curious notices of the social effect of the embargo are found in Loseing's Enc j.

of United States Hisc, tit. '* Embargo."
As to evasion of embargo by surreptitious trade with Canada, see 1 IngersoU's

Late War, 1st series, 485.

" I have read attentively your letter to Mr. Wbeaton on the question
whether, at the date of the message to Congress recommending the
embargo of 1^07, we had knowledge of the order of council of Novem-
ber 11 ; and according to your request I have resorted to my papers,
as well as my memory, for the testimony these might afford additional
to yours. There is no fact in the course of my life which I recollect
more strongly than that of my being at the date of the message in i>os-
session of an English newspaper containing a copy of the proclamation.
I am almost certain, too, that it was under the ordinary authentication
of the Government ; and between November 11 and December 17 there
was time enough (thirty-five days) to admit the receipt of such a paper,
which I think came to me through a private channel, probably put on
board some vessel about sailing, the moment it appeared.

'' Turning to my papers 1 find that I had prepared a first draft of
a message in which was this paragraph : ^ The British regulations had
before reduced us to a direct voyage, to a single port of their enemies,
and it is now believed they will interdict all commerce whatever with

them. A proclamation, too, of that Government of (not oflScially,

indeed, communicated tons, yet so given out to the public as to become
a rule of action with them) seems to have shut the door on all negotia-
tion with us except as to the single aggression on the Chesapeake.'
You, however, suggested a substitute (which I have now before me,
written with a pencil and) which, with some unimportant amendments,
I preferred to my own, and was the one 1 sent to Congress. It was in

110

CHAP. XV.] DISPLAY OF FORCE. f§ 321.

these words, * the communications now made, showing the great and
increasing dangers with which seamen, etc., ports of the United States.'
This shows that we communicated to them papers of information on
the sabject ; and as it was our interest and our duty to give them the
fitrongest information we possessed to justify our opinion and their
action on it, there can be no doubt we sent them this identical paper."

Mr. Jcfferaon to Mr. Madison, July 14, 1824. 7 Jeflf. Works, 373.

The embargo act of the 25th of April, 1808 (2 Stat. L., 499), related
ODly to vessels ostensibly bound to some port in the United States,
and a seizure after the termination of the voyage is unjustifiable;
and no further detention of the cargo is .lawful than what is neces-
sarily dependent on the detention of the vessel. It is not essential to
the determination of a voyage that the vessel should arrive at her orig-
inal destination ; it may be produced by stranding, stress of weather,
or any other cause inducing her to enter another port with a view to
terminate her voyage bona fide.

Otis r. Walter, 2 Wheat., 18.

Under the embargo act of the 22d of December, 1807 (2 Stat. L.,
451), the words, ^' an embargo shall be laid," not only imposed upon the
public officers the duty of preventing the departure of registered or
sea-letter vessels on a foreign voyage, but prohibited their sailing, and
couseqaently rendered them liable to forfeiture under the supplement-
ary act of the 9th of January, 1808 (2 Sut. L., 453).

In such case, if the vessel be actually and bona fide carried by force
to a foreign port, she is not liable to forfeiture ; but if the capture, un-
der which it was alleged that the vessel was compelled to go to a foreign
port, was fictitious and collusive, she was liable to condemnation.

The WiUiam King, 2 Wheat., 148.

VII. DISPLAY OF FORCE,
§ 321.

*' In reviewing these injuries from some of the belligerent powers, the
moderation, the firmness, and the wisdom of the legislature will all be
called into action. We ought still to hope that time and a more correct
estimate of interest, as well as of character, will produce the justice we
are bound to expect. But should any nation deceive itself by false cal-
culations, and disappoint that expectation, we must join in the unprofit-
able contest of trying which i)arty can do the other the most harm.
Some of these injuries may, perhaps, admit a peaceable remedy. Where
that is competent it is always the most desirable. But some of them
are of a nature to be met by force only, and all of them may lead to it.
i cannot, therefore, but recommend such preparations as circumstances
call for. The first object is to place our sea-port towns out of the dan-
Ill

§ 321.] PACIFIC METHODS OP REDRESS. [CHAP; XV.

ger of insalt. Measures have been already taken for furnisbing them
with heavy cannon for the service of such land batteries as may make
a part of their defense against armed vessels approaching them. In
aid of these it is desirable that we should have a competent number of
gunboats ; and the number to be competent must be considerable. If
immediately begun they may be in readiness for service at the opening
of the next season. Whether it will be necessary to augment our land
forces will be decided by occurrences probably in the course of your
session.''

President Jefferson, Fifth Annual Message, 1805.

^^The constant maintenance of a small squadron in the Mediterranean
is a necessary substitute for the humiliating alternative of paying trib-
ute for the security of our commerce in that sea, and for a precarioua
peace at the mercy of every caprice of four Barbary States, by whom it
was liable to be violated. An additional motive for keeping a respect-
able force stationed there at this time is found in the maritime war
raging between the Greeks and the Turks, and in which the neutral
navigation of this Union is always in danger of outrage and depreda-
tion. A few instances have occurred of such depredations upon our
merchant vessels by privateers or pirates wearing the Grecian flag, but
without real authority from the Greek or any other Government. The
heroic struggles of the Greeks themselves, in which our warmest sympa-
thies as freemen and Ohristians have been engaged, have continued to
be maintained with vicissitudes of success adverse and favorable.

^^ Similar motives have rendered expedient the keeping of alike force
on the coasts of Peru and Chili, on the Pacific. The irregular and con-
vulsive character of the war upon the shores has been extended to the
conflicts upon the ocean. An active warfare has been kept up for
years with alternate success, though generally to the advantage of the
American patriots ; but their naval forces have not always been under
the control of their own Gt>vernments. Blockades, unjustifiable upon
any acknowledged principles of international law, have been proclaimed
by officers in command, and though disavowed by the supreme author-
ities, the protection, of our own commerce against them has been made
cause of complaint and of erroneous imputations against some of the
most gallant officers of our Navy. Complaints equally groundless have
been made by the commanders of the Spanish royal forces in those seas,
but the most eflective protection to our commerce has been the flag, and
the firmness of our own commanding officers. The cessation of the war,,
by the complete triumph of the patriot cause, has removed, it is hoped,
all cause of dissension with one party and all vestige of force of the
other. But an unsettled coast of many degrees of latitude, forming a
part of our own territory, and a flourishing commerce and fishery, ex-
tending to the islands of the Pacific and to China, still require that the

112

CHAP. XV.] DISPLAY OF FORCE. [§321.

protecting power of the Union should be displayed under its flag, as
veil npon the ocean as upon the laud."

President J. Q. Adams, First Annual Message, 1625.

When, in 1852, the Japanese authorities refused to protect citizens of
the United States visiting or cast ashore in Japan, it was held proper
(there being then no treaty protection) to display at Japan an im-
posing naval force, and to inform the Japanese Government that the
Government of the United States will insist upon the protection and
hospitality asked for being given.

Mr. Conrad, Acting Sec. of State, to Mr. Kennedy, Not. 5, 1852. MSB. Notes,
Special Missions.

In 1858 the Secretary of the Navy was asked to send a naval force
to Java, to take measures to secure the trial of persons charged with
assassinating certain American citizens.

Mr. Cass, Sec. of State, to Mr. Toncey, Ang. 10, 1658. MSS. Dom. Let. Cited

9upra, $ 242. See also App., Vol. Ill, $ 321.
As to extreme measures to exact payment of debt, see twjpra, $ 222. See Mr.

Cass to Mr. Toncey, July 28, 1656; ibid,

^^ In the view that the employment of other than peaceful means
might become necessary to obtain ^just satisfaction' from Paraguay, a
strong naval force was concentrated in the waters of the La Plata to
await contingencies, whilst our commissioner ascended the river to As-
ancion. The Navy Department is entitled to great credit for the
promptness, efficiency, and economy with which this expedition was
fitted out and conducted. It consisted of nineteen armed vessels, great
and small, carrying two hundred guns and twenty-five hundred men, all
under the command of the veteran and gallant Shubrick. The entire
expenses of the expedition have been defrayed out of the ordinary ap-
propriations for the naval serrice, except the sum of $289,000 applied
to the purchase of seven of the steamers constituting a part of it, under
the authority of the naval appropriation act of the 3d March last. It
is believed that these steamers are worth more than their cost, and they
are all now usefully and actively employed in the naval service.

<<The appearance of so large a force, fitted out in such a prompt
manner, in the &r distant waters of the La Plata, and the admirable
conduct of the officers and men employed in it, have had a happy effect in
fiivor of our country throughout all that remote portion of the world.''

President Buchanan, Third Annual Message, 1859. See Bv^praj $$ 36, 57.

<< The hostile attitude of the Government of Paraguay toward the
United States early commanded the attention of the President. That
Government had, upon frivolous and even insulting pretexts, refused to
ratify the treaty of friendship, commerce, and navigation, concluded
with it on the 4th March, 1853, as amended by the Senate, though this
only in mere matters of form. It had seized and appropriated the prop-
erty of American citizens residing in Paraguay, in a violent and arbi-
trary manner ; and finally, by order of^ President Lopez, it had fired
upon the U. S. S. Water Witch (1st February, 1855), under Commander

B. Mis. 162— VOL. m 8 113

§ 321.] PACIFIC METHODS OF REDRESS. [CHAP. XV.

Thomas J. Page, of the Favy, and killed the sailor at the helni| whilst
she was peacefmly employed in sorvpying the Parana Biver, to ascer-
tain its fitness for steam navigation. The honor as well as the interests
of the country demanded satisfaction.

'* The President brought the subject to the notice of Congress in his
first annual message (dih December, 1857). In this he informed them
that he would make a demand for redress on the Government of Para-
guay in a firm but conciliatory manner, but at the same time observed,
that ' this will the more probably be granted if the Executive shall have
authority to use other means in the event of a refusal. This is accord-
ingly recommended.' Congress responded favorably to this recommen-
dation. On the 2d June, 1858, they passed a joint resolution authorizing
the President 'to adopt such measures, and use such force as, in his
judgment, may be necessary and advisable, in the event of a refusal of
just satisfaction by the Government of Paraguay, in connection with the
attack on the U. S. S. Water Witch, and with other matters referred to
in the annual message.' They also made an appropriation to defray the
expenses of a commissioner to Paraguay, should he deem it proper to
appoint one, 'for the adjustment of difficulties' with that Bepublic.

^' Paraguay is situated far in the interior of South America, and its
capital, the city of Asuncion, on the left bank of the river Paraguay,
is more than a thousand miles from the mouth of the La Plata.

" The stern policy of Dr. Francia, formerly thB dictator of Paraguay,
had been to exclude all the rest of the world from his dominions, and in
this he had succeeded by the most severe and arbitrary measures. His
successor, President Lopez, found it necessary, in some degree, to relax
this jealous policy ; but, animated by the same spirit, he imposed harsh
restrictions in his intercourse with foreigners. Protected by his remote
and secluded position, he but little apprehended that a navy from a far
distant country could ascend the La Plata, the Parana, and the Para-
guay and reach his capital. This was doubtless the reason why he had
ventured to place us at defiance. Under these circumstances, the Presi-
dent deemed it advisable to send with our commissioner to Paraguay,
Hon. James B. Bowliu, a naval force sufficient to exact justice should
negotiation fail. This consisted of nineteen armed vessels, great and
small, carrying two hundred guns and twenty-five hundred sailors and
marines, all under the command of the veteran and gallant Shubrick.
Soon after the arrival of the expedition at Montevideo, Commissioner
Bowlin and Commodore Shubrick proceeded (30th December, 1858) to
ascend the rivers to Asuncion in the steamer Fulton, accompanied by
the Water Witch. Meanwhile the remaining vessels rendezvoused in
the Parana, near Bosario, a position from which they could act promptly,
in case of need.

^'The commissioner arrived at Asuncion on the 25th January, 1859,
and left it on the 10th February. Within this brief period he had ably
and successfully accomplished all the objects of his mission. In addi-
tion to ample apologies, he obtained from President Lopez the payment
of $10,000 for the family of the seaman (Chaney) who had been'killed
in the attack on the Water Witch, and also concluded satisfactory
treaties of indemnity, and of navip^ation and commerce, with the Para-
guayan Government. Thus the President was enabled to announce to
Congress in his annual message (December, 1859), that 'all our diffi-
culties with Paraguay had been satisfactorily adjusted.'

"Even in this brief summary it would be unjust to withhold from
Secretary Toucey a commendation for the economy and efficiency he

CHAP. XV.] DISPLAY OF FORCE. [§321.

displayed in fitting out this expedition. It is a remarkable fact in our
history that its entire expenses were defrayed out of the ordinary ap-
propriations for the naval service. Not a dollar was appropriated by
GoDfinress for this purpose, unless we may except the sum of $289,000
for the purchase of several small steamers of light draught, worth more
than their cost, and which were afterwards usefully employed in the
ordinary naval service.

*^It may be remarked that the President, in his message already re-
ferred to, justly observes, ^that the appearance of so large a force,
fitted out in such a prompt manner, in the far distant waters of the La
Plata, and the admirable conduct of the officers and men employed in
it. have had a happy effect in favor of our country throughout all that
remote i>ortion of the world.'"

51r. Bachanan's defense, 265, 256, quoted in 2 Curtis' Buclianan, 224.

Galvo^s account of this transaction is substantially as follows (droit
int. (3d ed.), vol. i, 4 16) :

In 1853 the United States and Paraguay concluded a convention as
to the free navigation of the river, and a treaty of commerce and navi-
gation. The treaty and convention not having been ratified in conse-
4)uenee of certain action of the Senate, the Government did not hesitate
to send Mr. Hopkins as consul to Assomption, who was without diffi-
cnltj' officially received by the Governor of Paraguay. It was alleged
that Mr. Hopkins added to his consular functions certain private spec-
ulations ba«ed on concessions in Paraguay. He attempted in vain to
obtain lands for this purpose in Paris and London. He purchased, as
part of the scheme, a ship in New York, which he called the Assomp-
tion, and which he insured for $50,000. This vessel was shipwrecked
on her first voyage, and the insurance money turned as capital into a
4:orporation entitled, Gompagnie de commerce et de navigation de Para-
guay. Shortly afterwards, Mr. Hopkins, in his double capacity of con-
sul and of speculator, fell into such difficulties at Paraguay as induced
the Government to recall his exequatur. At this time a United States
«hip-of-war, the Water Witch, was at Assomption, charged with the
exploration of the affluents of the river La Plat«. Mr. Hopkins, on
the ground that his safety and that of his ^'compatriots" were assailed,
visited the ship and obtained the aid of certain armed sailors of the
ship to go ashore with him and to carry off from the consular office the
papers belonging to the ^^ company." The difficulties that then origi-
nated were aggravated in 1855 by an attempt of the Water Witch to
force ita way through a channel of the river Paraguay, which was gen-
erally interdicted, and which was open to the fire of the Fort Ftapira.
The Government of the United States, to obtain redress, sent a squadron
of twenty ships with two thousand men ; but the fleet was detained
on its way by an offer of mediation by the Argentine Bepublic. This
mediation resulted in a treaty, signed February 4, 1859, which, among
other things, provided that the commercial claims of Mr. Hopkins be
referred to arbitrators, to be chosen by the two Gtovemments, respect-
ively.. Hie arbitrators reported that Mr. Hopkins had no claim of any
kind against Paraguay, and in this report the commissioner of the
United States joined. Calvo maintains that the precipitate action of
the Government of the United States was a wrong, not merely to Para-
guay, but to the United States, which, to support an unfounded claim,
got up an exx>edition whose mere preparation cost over bcven million of

dollars.

115

CHAPTER XVL

VISIT, SEABCH, CAPTTTBE, AHD IMPRESSMEHT

I. As A BBLUOXESNT RIGHT.

Visit in snch cases permitted, $ 325.
n. In cases of piract.

On probable cause papers may be demanded, $ 326. ^

III. Visit no longer permitted in peace, $ 327.

IV. Action of prize court mat br essential, $ 328.

V. When having jurisdiction such court mat conclude, $ 329.

VI. Birr NOT WHEN NOT IN CONFORMTTT WITH INTERNATIONAL LAW, $ 339a;

vn. Proceedings of such court, $ 330.
Vm. Impressment.

Its history and abandonment, $ 331.

I. A8 A BELLIGERENT EIGHT,
Visit in such cases permitted.

325.

In the draft convention Buggested on January 5, 1804, by Mr. Madisoni.
Secretary of State, to Mr. Monroe, minister to England, occors tJie fol-
lowing :

'' Article ni. If the ships of either of the parties shall be met with sailing either
along the coasts or on the high seas by any ship-of-war or other public or priyate
armed ships of the other party, snch ships-of-war or other armed yessels shall, for
avoiding all disorder in visiting and examining the same, remain oat of cannon shot
unless the state of the sea or the place of meeting render a nearer approach necessary^
and shall in no case compel or require such vessel to send her boat, her papers, or any
person from on board to the belligerent vessel, but the belligerent vessel may send her
own boat to the other and may enter her to the number of two or three men only, who>
may in an orderly manner make the necessary inquiries concerning the vessel and her
cargo ; and it is agreed that effectual provision shall be made for nnnishing violations
of any part of this article.''

On this Mr. Madison makes the following observations :
^< This regulation is conformable to the law of nations, and to the tenor
of all treaties which define the belligerent claim of visiting and searohing
nentral vessels. No treaty can be cited in which the practice of com-
pelling the nentral vessel to send its boat, its officers, its people, or its
papers to the belligerent vessel, is authorized. British treaties, as well
as those to which she is not a party, in every instance where a regula-
tion of the claim is undertaken, coincide with the article here proposed..

116

-ciiAP. xvl] as a belligerent eight. [§ 325.

The article is in fact almost a transcript of the article of the treaty

of 1786 between Great Britain and France.

''The regulation is foanded on the best reasons : 1st. It is snfflcient
for the neutral that he acquiesces in the interruption of his voyage, and
the tioable of the examination imposed by the belligerent commander.
To require a positive and active co-operation on his part in behalf of the
latter is more than can be justifled on any principle. 2d. The belligerent
party can always send more conveniently to the neutral vessel than this
€an send to the belligerent vessel ; having neither such fit boats for the
purpose, espedaUy in a rough sea, nor being so abundantly manned.
3d. This last consideration is enforced by the numerous and cruel abuses
committed in the practice of requiring the neutral vessel to send to the
belligerent As an example you will find in the documents now trans-
mitted a case where neither the smallness and leakiness of the boat, nor
the boisterous state of the weather, nor the pathetic remonstrances of
the nentral commander had any effect on the imperious injunctions of
the belligerent, and where the task was performed at the manifest peril
of the boat, the papers, and the lives of the people. The limitation of
the nnmber to be sent on board the neutral vessel is a reasonable and
voal precaution against the danger of insults and pillage."

MSS. Inst., Ministers.

Another unjustifiable measure is '^ the mode of search practiced by
British ships, which, instead of remaining at a proper distance from
the vessel to be searched, and sending their own boat with a few men
for the purpose, compel the vessel to send her papers in her own boat,
and sometimes with great danger from the condition of the boat and the
6tate of the weather.''

Mr. Madison, Sec. of State, report, Jan. 25, 1806. MSS. Report Book. 2 Am.
St. Pap. (For. Rel.), 726.

^^ England is allowed, when she is at war, to visit neutral vessels for
the purpose of seizing merchandise either belonging to her enemy^ or con-
adered as contraband destined for her enemy ^ and soldiers or other oom-
hUnaU in the service of her enemy. But she never had before claimed
the right of visiting or seizing, under the pretense of retaking what be-
longed to herself. If the right was conceded to her of seizing, on board ^
vessels of other nations, the seamen she claims as belonging to her, she
would equally have that of seizing merchandise claimed by her subjects
^ belonging to them, and there would no longer be any acknowledged
line of demarcation which would prevent her from exercising an unlim-
ited jarisdiction over the vessels of all other nations."

Mr. Gallatin to the Enix>eror of Boseia: presented Jnne 19, 1814, to the Emperor
Alexander.

*^The right of search has heretofore been so freely used and so much
Abosed to the iigury of our commerce that it is regarded as an odious
docMne in this country, and if exercised against us harshly in the ap-
pioaching war will excite deep and widespread indignation. Caution
^ the part of belligerents in exercising it towards us in cases where

117 ^

§ 325.] VISIT AND SEARCH. [CHAP. XVI.

sanctioned by usage would be a wise procedure. As the law has been
declared b^ decisions of courts of admiralty and elementary writers, it
allows belligerents to search neutral vessels for articles contraband of
war and for enemies' goods. If the doctrine is so modified as to ex-
empt from seizure and confiscation enemies' property under a neutral
flag, still the right to seize articles contraband of war on board of neu-
tral vessels implies the' right to ascertain the character of the cargo.
If used for such a purpose, and in a proper manner, it is not probable
that serious collisions would occur between neutrals and belligerents.

*'A persistent resistance by a neutral vessel to submit to a search
renders it confiscable according to the settled determinations of the
English admiralty. It would be much to be regretted if any of our
vessels should be condemned for this cause, unless under circum-
stances which compromitted their neutrality."

Mr. Marcy, Sec. of State, to Mr. Bacbanan, Apr. 13, 1854. MSS. Inst., Gr. Brit.

On this topic see correspondence in 1658, attached to President Bachaoan's an-
nual message, Sd sees., 35th Cong., Senate Ex. Doc, 1 ; correspondence
in respect to the search, in 1858, of United States vessels by foreign
armed cruisers in the Gnlf of Mexico, is in Senate Ex. Doc. 5Q, 35th Cong.,
Ist sess., Brit, and For. St. Pap., 1864-'65, vol. 55.

*< The Trent, though she carried mails, was a contract or merchant
vessel — a common carrier for hire. Maritime law knows only three
classes of vessels — vessels of war, revenue vessels, and merchant ves-
sels. The Trent falls within the latter class. Whatever disputes have
existed concerning a right of visitation or search in time of peace, none,,
it is supposed, has existed in modem times about the right of a bellig-
erent in time of war to capture contraband in neutral and even friendly
merchant vessels, and of the right of visitation and search, in order to
determine whether they are neutral, and are documented as such
according to the law of nations."

Mr. Seward to Lord Lyons, Dec. 36, 1861. MSS. Notes, Gr. Brit. See as to this
case, infra, $$ 328, 374.

*^When vessels belonging to citizens of the United States have been
seized and are now navigated on the high seas by persons not repre-
senting any Government or belligerent power recognized by the United
States, such vessels may be captured and rescued by theinowners, or
by United States cruisers acting for such owners ; and all force which
is necessary for such purposes may be used to make the capture effect-
ual.'^

Report of solicitor of Department of State, affirmed by Mr. Bayard, Sec. of
State, to Mr. Scmggs, May 19, 1885. MSS. Inst., Colombia.

The right of search is not a right wantonly to vex and harass neutral
commerce, or to indulge the idle and mischievow curiosity of looking
into neutral trade, or the assumption of a right to control it. It is a
right growing out of, and ancillary to, the right of capture, and can
never exist except as a means to that end.

Tlie Nereide, 9 Crancb., :id8.
118

CHAP. XVI.] AS A BELLIGEBENT RIGHT. [§ 325.

As a belligereiit right it cannot be questioned, bat it must be con-
ducted with as much regard to the rights and safety of the vessel de-
tained as is consistent with a thorough examination of the character
and Toyage. Any detention of the vessel beyond what is necessary is
onlawful, as is also any transgression of the bonnds within which the
eiamination should be confined.

The Anna Maria, 2 Wheat., 327.

To detain for examination is a right which a belligerent may exercise
over every vessel, not a national vessel, that he meets with on the ocean.

The Eleanor, ibid,, 345.

It is lawfal, in order to facilitate the exercise of the right of search,
tx> assame the guise of a friend or of an enemy. If, in consequence of
the use of this stratagem, the crew of the vessel detained abandon their
duty before they are actually made prisoners of war, and the vessel is
thereby lost, the captors are not responsible.
md.

The modem usages of war authorize the bringing of one of the prin-
cipal officers on board the cruising vessel, with 'his papers, for examina-
tion. But in a case of detention merely for search, where the vessel is
never actually taken out of the possession of her own officers, the captain
of the cruiser may detain the vessel by orders from his own quarter-deck,
and the officers of the captured vessel must obey at their peril.

Ihid,

*
The right of search is strictly a belligerent right.

The Antelope, 10 Wheat., 66; The Marianna Flora, 11, ihid,, 1.

A vessel and cargo, even when perhaps owned by neutrals, may be
condemned as enemy property because of the employment of the vessel
in enemy trade, and because of an .attempt to violate a blockade and to
dude visitation and search.

The Balgorry, 2 WaU., 474.

The captain of a 'merchant steamer when brought to by a man-of-
war, is not privileged from sending his papers on board, if so required,
by the fact that he has a Gbvemment mail in his charge. On the oon-
tntfy, he is bound by that circumstance to strict performance of neutral
duties and to special respect for belligerent rights.

The Peterhoff, 5 WaU., 28.

A cruiser of one nation has a right to know the national character
of any strange ship he may meet at sea; but this right is not a perfect
one, and the violation of it cannot be punished by capture and condem-
nation nor even by detention. The party making the inquiry must put

IIP

§ 325.] VISIT AND SEABCH. [CHAP. XVL

Up his own colors, or in some other way make himself folly known, be-
fore he can lawfully demand such knowledge from the other vessel. If
this be refused, the inquiring vessel may fire a blank shot, and, in case
of further delay, a shotted gun may be fired across the bows of the
delinquent, by way of positive summons. Any measures beyond the
summoning shot, which the commander of an armed ship may take for
the purpose of ascertaining the nationality of another vessel, must be at
his peril; for the right of a ship to pass unmolested depends aiK>n her
actual character, and not upon that which was erroneously attributed
to her, even though her own conduct may have caused the mistake.
The latter may aifect the amount of reparation, but not the lawftalness
of the act.

9 Op., 456, Black, 1860.

The right of a public ship to hail or speak with a stranger must be
exercised within the same limits a)9 that of any other authorized armed
vessel. When a vessel thus interrogated answers either in words or by
hoisting her flag, the response must be taken for true, and she must be
allowed to keep her way. But this right of inquiring can be exercised
only on the high seas, and is limited to time of peace.

Ibid.

The right of search, as a belligerent right, is limited as follows :

(a) A neutral ship is not to be ordinarily searched when on a voyage
between two neutral ports.

(b) As a belligerent right it can only be exercised when war is rag-
ing.

(e) It was to be under direction of the commanding officer of the
belligerent ship, and through the agency of an officer in uniform.

{d) It must be based on probable cause; though the fact that this
cause turned out afterwards to be a mistake, does not of itself make the
arrest wrongful. (See Lushington, Prize Law, §§ 25, 94. But wanton
capturing without such cause subjects the captor to damages. The
Thompson, 3 Wall., 156; The Dashing Wave, 6 Wall., 170.)

{e) Contraband goods cannot ordinarily be seized and appropriated
by the captor. His duty is to take the vessel into a prize court, by
whom the question is to be determined. (As to prize courts, see tn/ra,
§ 329 ; as to contraband, in/ray § 368.)

(/) Where the right exists, a belligerent cruiser is justified in enforc-
ing it by all means in his power. (Lawrence pn Visitation and Search.)

ig) In case of violent resistance to a legitimate visitation, the vessel
so resisting may be open to condemnation by a prize court as prize.
But this is not the case with mere attempt! at flight. And there should
be no condemnation of a neutral vessel whose officers, having no rea-
sonable ground to believe in the existence of war,' resisted search.
(Field's Int Law, § 871.)

(A) The right of search, so it is held by the powers of continental
Europe, is not to be extended to neutral ships sailing under the convoy
of a war ship of the same nation. This view, however, has not been
accepted by Great Britain. But in any view, the commanding officer
of the convoy must give assurance that the suspected vessel is of his

120

CHAP. XVI.] AS A BELLIGERENT BIGHT. [§ 325.

nationality, under his charge, and has no contraband articles on board.
(Twiss, Law of Nations, part ii, § 96, maintains it to be a clear maxim
of law that ^' a neutral vessel is bound in relation to her commerce to
submit to the belligerent right of search." It is not competent, there-
fore, he insists, for a neutral merchant to exempt his vessel from the
belligerent right of search, by placing it under the convoy of a neutral
or enemy's man-of-war. See Kent Com., i, 154.)

The doctrine of our courts in this relation is stated above.

Mere evasive conduct, or subterfuges, which might be the result of
ignorance or terror, are not conclusive proof of culpability.

The PizuTo. 2 Wheat.^ 327.

Even throwing papers overboacd is open to explanation, and, without
other proof^ does not conclusively show tiiat the careo was enemy's prop-
«ty. (rKent Com., 158, Holmes's note, citing the Ella Warley, Blatch.
Pr., 204, and other cases in same volume: The Johanna Emilie, Spink's
C, 12. And see remarks by Mansfield, 0. J., in Bemardi v. Mot-

teux« Dougl., 581 : ^^ The right of search," according to Dr. Woolsey (Int.
Law^ § 190), *Ms Dy its nature confined within narrow limits, for it is
merely a method of ascertaining that certain specific violations of right
are not taking place, and would otherwise be a great violation itself of
the freedom of passage on the common pathway of nations. In the first
place, it is only a war right. The single exception to this is spoken of in
\ 194, viz, that a nation may lawftilly send a cruiser in pursuit of a vessel
which ^as left its i>ort under suspicion of having committed a fraud upon
its revenue laws, or some other crime. This is merely the continuation of
a parsuit beyond the limits of maritime jurisdiction with the examination
conducted outside of these bounds, which, but for the flight of the ship,
might have been conducted within. In the second place, it is applicable
to merchant ships alone. Vessels of war, pertaining to the neutral, are
exempt from its exercise, both because they are not wont to convey
goods, and because they are, as a part of the power of the state, enti-
tled to confidence and resi>ect. If a neatral state allowed or required
its armed vessels to engage in an unlawful trade, the remedy would have
to be applied to the state itself. To all this we must add that a vessel
in ignorance of the public character of another, for instance, suspckst-
ing it to be a piratical ship, may without guilt require it to lie to, but
the moment the mistake is discovered, all proceedings must cease.
(§§ 54, 195). In the third place, the right of search must be exerted in
such a way as to attain its object, and nothing more. Any ii^ury done
to the neutral vessel or to its c^rgo, any oppressive or insulting conduct
during the search, may be good ground for a suit in the court to which
the cruiser is amenable, or even for interference on the part of the
neutral state to which the vessel belongs." Mr. Seward, in his letter
to Lord Lyons of December 26, 1861 (on the Trent case), says; "What-
ever disputes have existed concerning a right of visitation or search in
times of peace, none, it is supposed, has existed in modern times about
tiie right of a belligerent in time of war to capture contraband in neutral
and even friendly merchant vessels, and of the right of visitation and
search, in order to determine whether they are neutral and are docu-
mented as such according to the law of nations." See Lawrence's
Wheaton, pt. iv, chap, iii, § 18.

121

§ 327.] VISIT AND 8EAECH. [CHAP. XVL

U. IN CASES OF PIRACY.
On probable cause papers may be demanded.

5 326.

The definition and limitations of piracy are hereafter independently
discussed, infra, §§ 380 ff.

The right to search on suspicion of piracy is like a right to arrest a
suspected felon^ and subjects to damages if the charge be not sub-
stantiated.

/n/ra, J J 327 jr.

^^ The right of visitation is by the law of nature an intercourse of
mutual benefit, like that of strangers meeting in a wilderness. The
right of search is for pirates in peace and tor enemies in war.''

11 J. Q. Adams's Mem., 142.

m. VISIT NO LONGER PERMITTED IN PEACE,

327.

On May 16, 1811, a collision took place between the United States
frigate President, and the British slfX)p-of-war Little Belt, near Gape
Charles. Only one person was wounded on the President, though her
rigging was injured. On the Little Belt there were thirteen killed, and
a number wounded. Courts of inquiries were held in both countries,
and with conflicting results.

The British Government took the ground that the shot fired by the
President, for the purpose of salute, was a hostile attack, and was to be
returned as such. On the other hand, it was maintained by Mr. Mon-
roe, Secretary of State, in a note to Mr. Foster, British minister, October
11, 1811 (MSS. Notes, For. Leg. ; 3 Am. St. Pap. (For. Bel.), 476), << that
Commodore Bodgers (of the President) pursued avessel which had at first
pursued him, and hailed her as soon as he approached within suitable dis-
tance, are circumstances which can be of no avail to Captain Bingham (of
the Little Belt). The United States have a right to know the national
character of the armed ships which hover on their coast, tod whether
they visit it with friendly or illicit views ; it is a right inseparable firom
the sovereignty of every independent state, and intimately connected
with their tranquillity and peaoe. • • • For these reasons the con-
duct of Commodore Bodgers, in approaching the Bittle Belt to make the
necessary inquiries and exchange a friendly salute, was strictly oorTect*"

The proceedings of the court of inquiry held in the United States are
given in 3 Am. St. Pap. (For. Bel.), 477 ff.

A number of witnesses were examined who concurred in testifying
that the Little Belt did not display her colors until it was too dark to
distinguish them, and that the first shot was fired by her and was re-
turned by a single gun, and that the general fire was commenced by the
Little Belt. It was also proved that when the fire in the Little Belt

122

CHAP. XVI.] NO LONGER PERMITTED IN PEACE. [§ 327.

was silenced, Gommodore Bodgers exerted himself to save her from
farther injury. The findings of the court were in accordance with the

evidence.

As to hauling down flag, see App., Vol. Ill, $ 328.

As to seizure on suspicion if concerned in slave-trade, " He (Lord Cas-
tlereagh) added, that no peculiar structure or previous appearances in
the vessel searched, no presence of irons, or other presumptions of crimi-
nal intention — nothing but the actual finding of slaves on board was
ever to authorize a seizure or detention."

Mr. Rush, minister at London, to Mr. Adams, Sec. of State, Apr. 15, lbl8. MSS.
Dispatches, Gr. Brit.

It is maintained *' that the admission of a right in the officers of for-
eign ships-of-war to enter and search the vessels of the United States,
in time of peace, under any circumstances whatever, would meet with
universal repugnance in the public opinion of this country ; that there
▼cold be no prospect of a ratification by advice and consent of the
Senate to any stipulation of that nature ; that the search by foreign
officers, even in time of war, is so obnoxious to the feelings and recol-
lections of this country that nothing could reconcile them to the exten-
sion of it, however qualified or restricted, to a time of peace; and that
it woald be viewed in a still more aggravated light, if, as in the treaty
with the Netherlands, connected with a formal admission that even
vessels under convoy of ships-of- war of their own nation should be liable
to search by the ships-of- war of another."

Hr. Adams, Sec. of State, to Messrs. QaUatin and Rush, Nov. 2, 1618. MSS.
Inst., Ministers.

'* The Government of the United States has never asserted, but has
invariably disclaimed the pretension of a right to authorize the search,
by the officers of the United States, in time of peace, of foreign vessels
npou the high seas, without their jurisdiction."

Mr. Adams, See. of State, to Mr. de Nenville, Feb. 22, 1822. MSS. Notes, For.

^ In the treaties of Great Britain with Spain, Portugal, and the Neth-
erlands for the suppression of the slave trade, heretofore communi-
cated, with the invitation to the United States to enter into similar
engagements, three principles were involved, to neither of which the
Government of the United States felt itself at liberty to accede. The
first was the mutual concession of the right of search and capture, in
time of peace, over merchant vessels on the coast of Africa. The second
was the exercise of that right, even over vessels under convoy of the
public officers of their own nation ; and the third was the trial of the
captored vessels by mixed commissions in colonial settlements under
no subordination to the ordinary judicial tribunals of the country to
which the party brought before them for trial should belong. In the
course of the correspondence relating to these proposals it has been
suggested that a substitute for the trial by mixed commissions might
be agreed to, and in your letter of the 8th of April an eoppeetaUon is

123

§ 327.] VISIT AND 8EABCH. [CHAP. XVL

anthorized that an arrangement for the adjudication of the vessels de-
tained might leave them to be disposed of in the usual way by the sen-
tence of a court of admiralty in the country of the captor, or place them
under the jurisdiction of a similar court in the country to which they
belonged; to the former alternative of which you anticipate the unhes-
itating admission of the United States in consideration of the aggra-
vated nature of the crime as acknowledged by their laws, which would
be thus submitted to 9, foreign jurisdiction. But it was precisely be-
cause the jurisdiction was foreign that the objection was taken to the
trial by mixed commissions ; and if it transcended the constitutional
authority of the Government of the United States to subject the per-
sons, property, and reputation of their citizens to the decisions of a
court partly composed of their own countrymen, it might seem needless
to remark that the constitutional objection could not diminish in pro-
portion as its cause should increase, or that the power incompetent to
make American citizens amenable to a court consisting one-half of
foreigners, should be adequate to place their liberty, their fortune, and
their fame at the disposal of tribunals entirely foreign. I would fur-
ther remark that the sentence of a court of admiralty in the country of
the captor is not the ordinarp way by which the merchant vessels of
one nation, taken on the high seas by the officers of another, are tried
in time of peace. There is^ in the ordinary way, no right whatever ex-
isting to take, to search, or even to board them ; and I take this occasion
to express the great satisfisMstion with which we have seen this princi-
ple solemnly recognized by the recent decision of a British court of
admiralty. • • •

^^ In the objections heretofore disclosed to the concession desired, of
the mutual and qualified right of search, the principal stress was laid
upon the repugnance which such a concession would meet in the pub-
lic feeling of this country, and of those to whom its interests are in-
trusted in the department of its government, the sanction of which is
required for the ratification of treaties. The irritating tendency of the
practice of search, and the inequalities of its probable operation, were
slightly noticed and have been contested in argument or met by prop-
ositions of possible palliations or remedies for anticipated abuses in
your letter. But the source and foundation of all these objections was,
in our former correspondence, scarcely mentioned, and never discussed.
They consist in the nature of the right of search at sea, which, as rec-
ognized or tolerated by the usage of nations, is a right exclusively of
trar, never exercised but by an outrage upon the rights of peaoe.^

Mr. Adams, Sec. of State, to Mr. Canning, June S4, 1SSS3. MSS. Notes, For. Leg.
As to disonssions of Mr. J. Q. Adams on right of search with Mr. Stratford

Canning, see 5 J. Q. Adams's Mem., 181, 182, 193, 210, 232.
The correspondence in 1819-23, in reference to the slave trade and the right of

search will be fonnd in Hoase Eep. 348, 21st Cong., 1st sess.
As to right of search, see slave trade convention of 1824. 5 Am. St. Pap. (For.

Rel.), 361.

124

CHAP, XVI.] NO LONGER PERMITTED IN PEACE. [§ 327-

The action of the Senate in 1824 on the proposed convention with
Great Britain for the suppression of the slave trade was substantially
as follows:

On May 21 it was resolved hy a vote of 36 to 2 <<that an article be
added whereby it shall be free to either of the parties, at any time, to
renounce the said convention, on giving six months' notice beforehand.
On May 22, after several preliminary votes, it was, by a vote of yeas 29,.
nays 13, resolved : ^' That the Senate do advise and consent to the ratifica-
tion of the convention made and concluded at London the 13th day of
March, 1824, between the United States of America and the King of the
United Kingdom of Great Britain and Ireland, with the exception of the
words ^ of America,' in line four of the first article } with the exception of
the second article, and the following words in the seventh article : ^ And
it is further agreed that any individual, being a citizen or subject of either
of the two contracting parties, who shall be found on board any vessel
not carrying the fiag of the other party, nor belonging to the subjects or
citizens of either, but engaged in the illicit trafBc of slaves, and seized
or condemned on that account by the cruisers of the other party, un-
der drcnmstances, which, by involving such individual in the guilt of
slave trading, would subject him to the penalties of piracy, he shall be
sent for trial before the comx>etent court in the country to which he
belongs, and the reasonable expenses of any witnesses belonging to
the capturing vessel, in proceeding to the place of trial, during their
detention there, and for their return to their own country, or to their
station in its service, shall, in every such case, be allowed by the court,,
and defirayed by the country in which the trial takes place :' Provided^,
That an article be added, whereby it shall be free to either of the par-
ties at any time to renounce the said convention, giving six months'^
notice beforehand."

5 Am. St. Pap. (For. Bel.), 362.

<« The convention between the United States and Great Britain for
the suppression of the African slave trade, is herewith transmitted to
yon, with the ratification on the part of the United States, under cer-
tain modifications and exceptions, annexed as conditions to the advice
and consent of the Senate to its ratification.

^ The participation of the Senate of the United States in the final con-
elusion of all treaties to which they are parties is already well knowik
to the British Grovemment, and the novelty of the principles estab-
lished by the convention, as well as their importance, and the requisite
assent of two-thirds of th^ Senators present to the final conclusion of
every part of the ratified treaty, will explain the causes of its ratifica-
tion under this form. It will be seen that the great and essential prin-
dples which form the basis of the compact are admitted to their full
extent in the ratified part of the convention. The second article, and
the portion of the seventh which it is proposed to expunge, are unes-

125

$ 327.] VISIT AND SEARCH. [CHAP. XVL

sential to the plan, and were not incladed in the project of convention
tra;nBmitted to yon from hence. They appear, indeed, to be, so far as
concerned the United States, altogether inoperative, since they could
not confer the power of capturing slave traders under the flag of a
third party, a i>ower not claimed either by the United States or Great
Britain, unless by treaty; and the United States, having no such treaty
with any other power, it is presumed that the bearing of those arti-
cles was exclusively upon the flags of those other nations with which
Great Britain has already treaties for tbe suppression of the slave
trade, and that, while they give an effective power to the o£Scers of
Great Britain, they conferred none upon those of the United States.

'^ The exception of the coast of America from the seas upon which
the mutual power of capturing the vessels under the flag of either
party may be exercised, had reference, in the views of the Senate,
doubtless, to the coast of the United States. On no part of that coast,
unless within the Gulf of Mexico, is there any probability that slave-
trading vessels will ever be found. The necessity for the exercise of
the authority to capture is, therefore, no greater than it would be upon
the coast of Europe. In South America the only coast to which slave
traders may be hereafter expected to resort, is that of Brazil, from
which it is to be hoped tbey will shortly be expelled by the laws of the
country.

^^The limitation by which each party is left at liberty to renounce
the convention by six months' notice to the other, may, perhaps, be
useful in reconciling other nations to the adoption of its provisions.
If the principles of the convention are to be permanently maintained
this limitation must undoubtedly be abandoned ; and when the public
mind shall have been familiarized to the practical operation of the sys-
tem, it is not doubted that this reservation will, on all sides, be readily
given up.

^* In giving these explanations to the British Government you will
state that the President was fully prepared to have ratified the con-
vention, without alteration, as it had been signed by you. He is aware
that the conditional ratification leaves the British Government at lib-
erty to concur therein, or to decline the ratification altogether, but he
will not disguise the wish that, such as it is, it may receive the sanc-
tion of Great Britain, and be carried into effect. When the concur-
rence of both Governments has been at length obtained, by exertions
so long and so anxiously continued, to principles so important, and for
purposes of so high and honorable a character, it would prove a severe
disappointment to the friends of freedom and of huittanity if all pros-
pect of effective concert between the two nations for the extirpation of
this disgrace to civilized man should be lost by differences of senti-
ment, in all probability transient, upon unessential details."

Mr. Adams, Sec. of State, to Mr. Rush, May 29, 1824. MSS. Inst., Miniateia. 5
Am. St. Pap. (For. Rel.), 362.

126

CHAP. XVL] no LONGEB PERMITTED IN PEACE. [§ 327.

•

** I have the honor to inform you that Mr. Secretary Canning has given
me to anderstaud, in an interview which I have this day had with him,
that Mb Government finds itself nnable to accede to the convention for
the suppression of the slave trade, with the alterations and modifica-
tions which have been annexed to its ratification on the part of the
United States. He said that none of these alterations or modifications
would have formed insuperable bars to the consent of Great Britain,
except that which had expnnged the word America from the first article,
bat that this was considered insuperable. • • •

^^The reasons which Mr. Canning assigned for this determination on
the part of Great Britain I forbear to state, as he has promised to ad-
dress a communication in writing to me upon this subject, where they
will be seen more accurately and at large ; but to guard against any
delay in my receiving that communication, I have thought it right not
to lose any time in thus apprising yon, for the President's information,
of the result."

Mr. Rash to Mr. Adams, Sec. of State, Ang. 9, 1824. 5 Am. St. Pap. (For. Rel.),
%4.

The opponents of the slave trade '^ were introducing, and had already
obtained the consent of Spain, Portugal, and the Netherlands, to a new
principle of the law of nations more formidable to human liberty than
the slave trade itself-— a right of the commanders of armed vessels of
one nation to visit and search the merchant vessels of another in time
of peace."

lilr. J. Q. Adams, April 29, 1819, as reported in 4 J. Q. Adkms's Mem., 354.

As to the treaty proposed by the British GovemmeDt in 1824 (modified by the
Senate and then dropped), giving the right of search for suspected slaves,
see the remarkable statement of Mr. J. Q. Adams, Apr. 14, 1842. Cong.
Globe, 27th C jng., 2d sess, 424 ; Schuyler's Am. Diplom., 247.

The United States cannot accede to a treaty stipulation extending
the right to search supposed slavers to the coasts of the United States.

Mr. McLane, Sec. of State, to Mr. Semrier, Mar. 24, 1834 MSS. Notes, For.
Leg.

^^The circumstances under which the right of boarding and visiting
vesselg at sea is usually enforced are defined with sufficient clearness ;
&Dd even where the right is admitted, usage among civilized nations
^^ prescribed with equal precision the manner in which it is to be exer-
cised. The motive of this communication is, that the British Govern-
ment should be clearly made sensible that the United States cannot, in
justice to their own citizens, permit the recurrence of such causes of
complaint. If, in the treaties concluded between Oreat Britain and other
powers, the latter have thought fit, for the attainment of a particular
*ject, to surrender to British cruisers certain rights and authority not
r^gnized by maritime law, the officers charged with the execution of
those treaties must bear in mind that their operation cannot give a right
to interfere in any manner with the flag of nations not party to them,
'^o United States not being such a party, vessels legally sailing under
their flag can in no case be called upon to submit to the operation of

127

§ 327.] VISIT AND SEARCH. [CHAP. XVI.

•

said treaties ; and it behooves their Government to protect and sustain
its citizens in every justifiable effort to resist all attempts to subject
them to the mles therein established, or to any oonseqaent deductions
therefrom. • • •

^< It is a matter of regrot that this practice [of fraudulently using the
flag of the United States to cover slavers] has not already been aban-
doned. The President, on learning the abuses which had grown out of it,
and with a view to do away with every cause for its longer continuance^
having now directed the establishment of a competent naval force to
cruise along those parts of the African coast which American vessels
are in the habit of visiting in the pursuit of their lawful commerce, and
where it is alleged that the slave trade has been carried on under an
illegal use of the flag of the United States, has a right to expect that
positive instructions will be given to all Her Miyesty's officers to forbear
from boarding or visiting vessels under the American flag."

Mr. Fonjth, See. of State, to Mr. Stevenson, Jnly 8, 1840. M68. In8t.,GT.

Brit.
An elaborate report of Mr. Forsyth, Sec. of State, Mar. 3, 1641, in relation to

seizures or search of American vessels on the coast of Africa, will be found

in House Ex. Doc. 115, 26th Cong., 2d sess.

^^ The President directs me to say that he approves your letter, and
warmly commends the motives which animated you in presenting it. The
whole subject is now before us here, or will be shortly, as Lord Ash-
burton arrived last evening; and without intending to intimate s^
present what modes of settling this point of difference with England
will be proi>osed, you may receive two propositions as certain :

'< 1st. That in the absence of treaty stipulations the United States will
maintain the immunity of merchant vessels on the sea to the fullest
extent which the law of nations authorizes.

^^ 2d. That if the Government of the United States, animated by a sin-
cere desire to put an end to the African slave trade, shall be induced
to enter into treaty stipulations for that purpose with any foreign power,
those stipulations shall be such as shall be strictly limited to their true
and single object ; such as shall not be embarrassing to inmocent com-
merce; and such especially as shall neither imply any inequality, nor can
tend in any way to establish any inequality, in their practical opera-
tions.'^

Mr. Webster, Sec. of State, to Mr. Cass, Apr. 5, 1842. MSS. Inst., Fnmce.

*^ It is known that in December last a treaty was signed in London
by the representatives of England, France, Bussia, Prussia, and Aus-
tria, having for its professed object a strong and united effort of the
five powers to put an end to the traf^c [the slave trade]. This treaty
was not officially communicated to the Government of the United States,
but its provisions and stipulations are supposed to be accurately known

128

CHAP. XVI.] NO LONGER PERMITTED IN PEACE. [§ 327.

to the pablic. It is understood to be not yet ratified on the part ot
France.

'^ I^o application or request has been made to this Government to
become party to this treaty ; but the course it might take in regard to
it has excited no small degree of attention and discussion in Europe, as
the principle upon which it is founded, and the stipulations which it
contains, have caused warm animadversions and great political excite-
ment.

'^ In my message at the conimencement of the present session of Con-
gress I endeavored to state the principles which this Government sup-
ports respecting the right of search and the immunity of flags. De-
sirous of maintaining those principles fully, at the same time that
existing obligations should be fnlfille<l, I have thought it most consistent
with the honor and dignity of the country that it should execute its own
laws and perform its own obligations by its own means and its own
power. The examination or visitation of the merchant v^sels of one
nation by th'e cruisers of another for any purpose except those known
and acknowledged by the law of nations, under whatever restraints or
regulations it may take place, may lead to dangerous results. It is far
better, by other means, to supersede any supposed necessity or any
motive for such examination or visit. Interference with a merchant
vessel by an armed cruiser is always a delicate proceeding, apt to touch
the point of national honor, as well as to affect the interest of indi-
viduals. It has been thought, therefore, expedient, not only in accord-
ance with the stipulations of the Treaty of Ghent, but at the same time
as removing all pretext on the part of others for violating the immu-
nities of the American flag upon the seas, as they exist and are defined
by the law of nations, to enter into the articles now submitted to the
Senate.

^<The treaty which I now submit to you proposes no alteratiou, miti-
gation, or modification of the rules of the law of nations. It provides •
simply that each of the two Governments shall maintain on the coast
of Africa a sufficient squadron to enforce, separately and respectively,
the laws, rights, and obligations of the two countries for the suppression
of the slave trade."

President Tylei's meMage, transmittiDg the Treaty of Waabington to the Sen-
ate, Aug. 11, 1842. 6 Webster's Works, 353.

^ Without intending or desiring to influence the policy of other Gov-

emmentB on this important subject this Government hns reflected on

what was due to its own character and position as the leading maritime

power on the American continent, left free to make such choice of

means for the fulfillment of its duties as it should deem best suited to

its dignity. The result of its refiections has been that it does not

oononr in measures which, for whatever benevolent purpose they may be

adopted, or with, whatever care and moderation they may be exercised^

8. Mia. lea— VOL. in 9 129

§ 327.] VISIT AND SEARCH. [CHAP. XVL

have yet a tendency to place the police of the seas in the hands of a sin-
gle power. It chooses rather to follow its own laws, with its own sanc-
tion, and to carry them into execution by its own authority. Disposed
to act in the spirit of the most cordial concurrence with other nations
for the suppression of the African slave trade, that great reproach of
our times, it deems it to be right nevertheless that this action, though
concurrent, should be independent ; and it believes that from this inde-
pendence it will derive a greater degree of efSciency. • • •

^^Tou are furnished, then, with the American policy in regard to
this interesting subject. First, independent but cordially concurrent
efforts of maritime states to suppress, a« far as possible, the trade on
the coast by means of competent and well-appointed squadrons, to
watch the shores and scour the neighboriug seas. Secondly, concurrent
becoming remonstrance with all Governments who tolerate within their
territories markets for the purchase of African negroes. There is much
reason to believe that if other states, professing equal hostility to this
nefarious trafSc, would give their own powerful concurrence and co-op-
eration to these remonstrances, the general effect would be satisfactory,
and that the cupidity and crimes of individuals would at length cease
to find both their temptation and their reward in the bosom of Christian
states and in the permission of Christian Governments."

Mr. Webster, Sec. of State, to Mr. Cass, Aug. 29, 1842. MSS. Inst., France.
6 Webster's Works, 367.

'^ The objection seems to proceed still upon the implied ground that
the abolition of the slave trade is more a duty^f Great Britain, or a
more leading object with her, than it is or should be with us ; as if, in
this great effort of civilized nations to do away the most cruel traffic
that ever scourged or disgraced the world, we had not as high and hon-
orable, as just and merciful, a part to act as any other nation upon the
face of the earth. Let it be forever remembered that in this great work
of humanity and justice the United States took the lead themselves. This
Government declared the slave trade unlawful; and in this declaration it
has been followed by the great powers of Europe. This Government
declared the slave trade to be piracy, and in this, too, its example has
been followed by other states. This Government — ^this young Govern-
ment, springing up in this New World within half a century ; founded on
the broadest principles of civil liberty, and sustained by the moral sense
and intelligence of the people— has gone in advance of all other nations
in summoning the civilized world to a common effort to put down and
destroy a nefarious traffic, reproachful to human nature. It has not
deemed that it suffers any derogation from its character or its dignity,
if, in seeking to fulfill this sacred dnty, it act, as far as necessary, on
fair and equal terms of concert with other powers, having in view the
same praiseworthy object. Such were its sentiments when it entered
into the solemn stipulations of the Treaty of Ghent ; such were its sen-

130

CHAP, xvl] no longer peemitted in peace. [§ 327.

timeuts when it requested Eogland to concur with us in declaring the
idave trade to be piracy ^ and such are the sentiments which it has man-
ifested on all other proper occasions."

Same to same, Not. 14, 1824 ; <Md. 6 Webster's Works, 380.

^< The rights of merchan€ vessels of the United States on the high
seas, aa understood by this Oovemment, have been clearly and fully
asserted (in the Ashburton treaty). As asserted, they will be main-
tained ; nor would a declaration, such as you propose, have increased
its resolution or its ability in this respect. The Government of the United
States relies on its own power and on the effective support of the peo-
ple, to assert successfully all the rights of all its citizens on the sea as
well as on the land, and it asks respect for these rights not as a boon
or favor from any nation. The President's message, most certainly, is
a clear declaration of what the country understands to be its rights,
and his determination to maintain them, not a mere promise to negotiate
for these rights or to endeavor to bring other powers into an acknowl-
edgment of them, either express or implied."

Same to same, Deo. 20, 1842 ; ihid. 6 Webster's W orks, 388.

As to the Ashburton treaty see supra^ § 150e; 3 Phill. Int. Law, 627.
It is to be observed that by the first article of the treaty' of 1862 (here-
after criticised) —

''The two high contraotiag parties mntnally consent tliat those ships of their re-
flpective navies which shall be provided with special instrnotions for that pnrpose,
M hereinafter mentioned, may visit snch merchant vessels of the two nations as may,
upon reasonable grounds, be suspected of being engaged in the African slave trade,
or of having been fitted ont for that pnrpoee ; or oi having, during the voyage on
which theiy are met by the said cruisers, been engaged in the African slave trade,
contrary to the provisions of this treaty ; and that such crusers ma^ detain, and send
er carry away, such vessels, in order that they may be brought to trial in the manner
herein after agreed upon."

After certain specifications it is provided,

'*Foarthly. The reciprocal right of search and detention shall be exercised only
vtthin the distance of two honaured miles from the coast of Africa, and to the south*
vaid of the thirty-second parallel of north latitude, and within Mriy leagum fmm
tM f»a»% of ikt Ufand of (Ma.^

The objections to the clause in italics are hereafter noticed.

«XJpon the reception of the President's message of December, 1842,
in England, Lord Aberdeen, on the 18th of January, 1843, addressed a
dispatch to Mr. Fox, still British minister here, and directed him to read
it to Mr. Webster. It took notice of that part of the President's mes-
sage which related to the right of search, and denied that any conces-
BiOQ on this point had been made by Great Britain in the late negotia-
tions. • • • Mr. Fox was informed by Mr. Webster that an answer
to this dispatch would be made in due time through Mr. Everett."

2 Curtis* Life of Wehster, 149 ff,^ where the debates iu Parliameut on this topio
are given.

^ in compliance with the resolution of the House of Eepresentatives
of the 22d instant, requesting me^to communicate with the House ^ what-
«ver correspondence or communication may have been received from the

131

§ 327.] VISIT AND SEARCH. [CHAP. XVL

British Government respecting the President's constiaction of the late-
British treaty concladed at Washington, as it concerns an alleged right
to visit American vessels,' I herewith transmit a report made to me by
the Secretary of State.

^^ I have also thought proper to communicate copies of Lord Aber-^
deen's letter of the 20th December, 1841, to Mr. Everett, Mr. Everett^s
letter of the 23d December in reply thereto, and extracts fh>m several
letters of Mr. Everett to the Secretary of State.

^* I cannot forego the expression of my regret at the apparent purpors
of a part of Lord Aberdeen's dispatch to Mr. E'ox. I had cherished the
hope that all possibility of misunderstanding as to the true construction
of the 8th article of the treaty lately concluded between Great Britain
and the United States was precluded by the plain and well-weighed
language in which it is expressed. The desire of both Governments i&
to put an end as speedily as possible to the slave trade ; and that de-
sire, I need scarcely add, is as strongly and as sincerely felt by the^
United States as it can be by Great Britain. Yet it must not be for-
gotten that the trade, though now universally reprobated, was, up to a
late period, prosecuted by all who chose to engage in it; and there were
unfortunately but very few Christian powers whose subjects were not
permitted and even encouraged to share in the profits of what was re-
garded as a perfectly legitimate commerce. It^ originated at a i>eriod
long before the United States had become independent, and was carried
on within our borders, in opposition to the most earnest remonstrancea
and expostulations of some of the colonies in which it was most actively
prosecuted. Those engaged in it were as little liable to injury or inter-
ruption as any others. Its character, thus fixed by common consent
and general practice, could only be changed by the positive assent of
each and every nation, expressed either in the form of municipal law or
conventional arrangement. The United States led the way in efforts to-
suppress it. They claimed no right to dictate to others, but they re-
««olved, without wafting for the co-operation of other powers, to prohibit
It to their own citizens, and to visit its perpetration by them with condign^
punishment. I may safely affirm that it never occurred to this Govern-
ment that any new maritime right accrued to it from the position it had
thus assumed in regard to the slave trade. If, before our laws fbr ita^
suppression, the flag of every nation might traverse the ocean unques-
tioned by our cruisers, this freedom was not, in our opinion, in the least
abridged by our municipal legislation.

<^Any other doctrine, it is plain, would subject to an arbitraiy and
ever- varying system of maritime police, adopted at will by the great
naval power for the time being, the trade of the world in any places or
in any articles which such power might see fit to prohibit to its own
subjects or citizens. A principle of this kind could scarcely be acknowl-
edged, without subjecting commerce to the risk of constant and harasa-
ing vexations.

132

CHAP. XVI.] NO LONGER PERMITTED IN PEACE. [§ 327-

<^ The attempt to justify such a pretension from the right to visit and
detain ships upon reasonable suspicion of piraey would deservedly be
exposed to universal condemnation, since it would be an attempt to con-
vert an established rule of maritime law, incorporated as a principle
into the international oode^by the consent of all nations, into a rule and
principle adopted by a single nation, and enforced only by its assumed
•authority. To seize and detain a ship upon suspicion of piracy, with
.probable cause and in good faith, affords no just ground either for com-
plaint on the part of the nation whose flag she bears, or claim of in-
-demnity on the part of the owner. The universal law sanctions, and
the common good requires, the existence of such a rule. The right,
under such circumstances, not only to visit and detain, but to search a
:fllup, is a perfect right, and involves neither, responsibility nor indem-
nity. But, with this single exception, no nation has, in time of peace,
any authority to detain the ships of another upon the high seas, on any
pretext whatever, beyond the limits of her territorial jurisdiction. And
each, I am happy to And, is substantially the doctrine of Great Britain
berself, in her most recent ofScial declarations, and even in those now
<x>mmuiucated to the House. These declarations may well lead us to
-doubt whether the apparent difference between the two Governments
is not rather one of definition than of principle. Not only is the right
«f teanA, properly so called, disclaimed by Great Britain, but even that
of mere visit and inquiry is asserted with qualifications inconsistent
with the idea of a perfect right

*^ In the dispatch of Lord Aberdeen to Mr. Everett of the 20th of De-
cember, 1841, as also in that just received by the British minister in this
4X>antry, made to Mr. Fox, his lordship declares that if, in spite of •all
the precaution which shall be used to prevent such occurrences, an
American ship, by reason of any visit or detention by a British cruiser,
-^should suffer loss and injury, it would be followed by prompt and ample
lemuneratiou ;' and in order to make more manifest her intentions in
1^8 respect, Lord Aberdeen, in the dispatch of the 20th December,
makes known to Mr. Everett the nature of the instructions given to the
British cruisers. These are such as, if faithfully observed, would en-
able the British Government to approximate the standard of a fair in-
demnity. That Government has in several cases fulfilled her promises
in this particular, by making adequate reparation for damage done to
our commerce. It seems obvious to remark, that a right which is only
to be exercised under such restrictions and precautions and risk, in
^sase of any assignable damage, to be followed by the consequences of
a trespass, can scarcely be considered anything more than a privilege
asked for, and either conceded or withheld, on the usual principles of
international comity.

*< The principles laid down in Lord Aberdeen's dispatches, and the
assurances of indemnity therein held out, although the utmost reliance
was placed on the good faith of the British Government, were not re-

133

§ 327.] VISIT AND SEARCH. [CHAP. XVU

garded by the Execative as a sufficient security against the abuses
which Lord Aberdeen admitted might arise in even the most cautious
and moderate exercise of their new maritime police ; and therefore, in
my message at the opening of the last session, I set forth the views en-
tertained by the Executive on this subject, and substantially affirmed
both our inclination and ability to enforce our own laws, protect our
flag. from abuse, and acquit ourselves of all our duties and obligations
on the high seas. In view of these assertions, the Treaty of Washington
was negotiated, and, upon consultation with the British negotiator as
to the quantum of force necessary to be employed in order to attain
these objects, the result to which the most deliberate estimate led was
embodied in the eighth article of the treaty.

^^ Such were my views at the time of negotiating that treaty, and such^
in my opinion, is its plain and fair interpretation. I regarded the eighth
article as removing all possible pretext, on the ground of mere necessity,
to visit and detain our ships upon the African coast because of any
alleged abuse of our flag by slave traders of other nations. We had
taken upon ourselves the burden of preventing any such abuse, by stipu-
lating to furnish an armed force regarded by both the high contracting
parties as sufficient to accomplish that object.

<^ Denying, as we did and do, all color of right to exercise any such
general police over the flags of independent nations, we did not demand
of Great Britain any formal renunciation of her pretension; still less
had we the idea of yielding anything ourselves in that respect. We
chose to make a practical settlement of the question. This we owed ta
what we had already done upon this subject. The honor of the country
called for it ; the honor of its flag demanded that it should not be used
by others to cover an iniquitous traffic. This Government, I am very
sure, has both the inclination and ability to do this ; and, if need be, it
will not content itself with a fleet of eighty guns, but, sooner than any
foreign Government shall exercise the province of executing its lawa
and fulfilling its obligations, the highest of which is to protect its flag
alike from abuse or insult, it would, I doubt not, put in requisition for
that purpose its whole naval power. The purpose of this Government is
faithfully to fulfill the treaty on its part, and it will not permit itself to
doubt that Great Britain will comply with it on hers. In this way peace
will best be preserved and the most amicable relations maintained be-
tween the two countries."

President Tyler, measage of Feb. 27, 1843. House Ex. Doo. 192, 27th Cong., 3d

**The eighth and ninth articles of the Treaty of Washington constitute
a mutual stipulation for concerted efforts to abolish the African slave
trade. This stipulation, it may be admitted, has no other effects on the
pretensions of either party than this : Great Britain had claimed as a
right that which this Government could not admit to be a righty and ia

134

CHAP. XVI.] NO LONGER PERMITTED IN PEACE. [§ 327.

the exercise of a just and proper spirit of amity a mode was resorted
to which might render unnecessary both the assertion and the denial of
such claim.

** There are probably those vAio think that what Lord Aberdeen calls
a right of visit, and which he attempts to distinguish from the right of
search, ought to have been expressly acknowledged by the Government
of the United States ; at the same time there are those on the other
side who think that the formal surrender of such right of visit should
have been demanded by the United States as a precedent condition to
the negotiation for treaty stipulations on the subject of the African
slave trade. But the treaty neither asserts the claim in terms nor de-
nies the claim in terms; it neither formally insists upon it nor formally
renounces it. Still the whole proceeding shows that the object of the
stipulation was to avoid such differences and disputes as had already
arisen, and the serious practical evils and inconveniences which, it
cannot be denied, are always liable to result from the practice which
Great Britain had asserted to be lawful. These evils and inconven-
iences had been acknowledged by both Governments. They had been
such as to cause much irritation, and to threaten to disturb the amica-
ble sentfinents which prevailed between them. Both Governments
were sincerely desirous of abolishing the slave trade; both Govern-
ments were equally desirous of avoiding occasion of complaint by their
respective citizens and subjects; and both Governments regarded the
8th and 9th articles as effectual for their avowed purpose, and likely,
at the same time to preserve all friendly relations, and to take away
causes of future individual complaints. The Treaty of Washington was
intended to fulfill the obligations of the Treaty of Ghent. It stands by
itself, is clear and intelligible. It speaks its own language and mani-
fests its own purpose. It needs no interpretation and requires no com-
ment. As a fact, as an important occurrence in national intercourse,
it may have important bearings on existing questions respecting the
public law; and individuals, or perhaps Governments, may not agree
as to what these bearings really are. Great Britain has discussions, if
not controversies, with other great European states upon the subject
of visit and search. These states will naturally make their own com-
mentary on the Treaty of Washington, and draw their own inferences
from the fact that such a treaty has been entered into. Its stipulations,
in the mean time, are plain, explicit, satisfactory to both parties, and
wiU be fulfilled on the part of the United States, and it is not doubted
on the part of Great Britain also, with the utmost good faith.

^< Holding this to be the true character of the treaty, I might, per-
haps, excuse myself from entering into the consideration of the grounds
of that claim of a right to visit merchant ships, for certain purposes, in
time of peace, which Lord Aberdeen asserts for the British Goverment,
and declares that it can never surrender. But I deem it right, never-

135

§ 327.] VISIT AND SEARCH. [CHAP. XVL

tlielcss, and no more than justly respectful towards the British Govern-
ment not to leave the point without remark. • • • .

"The right of search, except when specially conceded by treaty, is a
purely belligerent right, and can have no existence on the high seas
during peace. The undersigned apprehends, however, that the right
of search is not confined to the verification of the nationality of the ves-
sel, but also extends to the object»of her voyage and the nature of the
cargo. The sole purpose of the British cruisers is to ascertain whether
the vessels they meet with are really American or not. The right as-
serted has, in truth, no resemblance to the right of search, either in
principle or practice. It is simply a right to satisfy the party who has
a legitimate interest in knowing the truth that the vessel actually is
what her colors announce. This right we concede as freely as we ex-
ercise. The British cruisers are not instructed to detain American ves-
sels, under any circumstances 'whatever; on the contrary, they are
ordered to abstain from all interference with them, be they slavers or
otherwise. But where reasonable suspicion exists that the American
flag has been abused, for the purpose of covering the vessel of another
nation, it would ap]>ear scarcely credible, had it not been mad^ manifest
by the repeated protest of their representative, that the Government
of the United States, which has stigmatized and abolished the trade
itself, should object to the adoption of such means a:^ are indispensably
necessary for ascertaining the truth."

Mr. Webster, Sec. of State, to ^Ir. Everett, Mar. 28, 1843 [quoting a note of
Lord Aberdeen to Mr. Everett of Dec. 20, 1842]. MSS. Inst.^ Or. Brit.
Printed with some formal alterations in 6 Webster's Works, 331 jf.

*' Visit, as it has been understood, implies not only a right to inquire
into the national character, but to detain the vessel, to stop the prog-
ress of the voyage, to examine papers, to decide on their regularity
and authenticity, and to make inquisition on board for enemy's property,
and into the business which the vessel is engaged in. In other words,
it describes the entire right of belligerent visitation and search. Such
a right is justly disclaimed by the British Government in time of peace.
They nevertheless insist on a right which they denominate a right of
visit, and by that word describe the claim which they assert. There-
fore it is proper, and due to the importance and delicacy of the questions
involved, to take care that, in discussing them, both Governments un-
derstand the terms which may be used in the same sense. If, indeed,
it should be manifest that the difiference between the parties is only
verbal, it might be hoped that no harm would be done ; but the Gov-
ernment of the United States thinks itself not chargeable with excessive
jealousy, or with too great scrupulosity in the use of words in insisting on
its opinion that there is no such distinction as the British Government
maintains between visit and search, and that there is no right to visit,
in time of peace, except in the execution of revenue laws or other mu.

136

CHAP. XVL] no longer PERMITTED IN PEACE. [§ 327.

iiicipal regulations, in which cases the right is usoally exercised near
the coast, or within the marine league, or where the vessel is justly
suspected of violating the law of nations by piratical aggression ; but
wherever exercised it is a right of search. Nor can the United States
Oovemment agree that the term ' right' is justly applied to such exer-
cise of ])ower as the British Oovemment thinks it indispensable to main-
tain in certain cases. The right asserted is a right to ascertain whether
a merchant vessel is justly entitled to the protection of the flag which
she may happen to have hoisted, such vessel being in circumstances
which render her liable to the suspicion, first, that she is not entitled to
the protection of the flag; and, secondly, that if not entitled to it, she
is, either by the law of England an English vessel, or, by the provisions
of treaties with certain European powers, subject to the supervision and
search of British cruisers. • • •

''An eminent member of the House of Commons (Mr. Charles Wood)
thus states the British claim, and his statement is acquiesced in and
adopted by the first minister of the Crown :

**' ^ The claim of this country is for the right of our cruisers to ascer-
tain whether a merchant vessel is justly entitled to the protection of
the flag which she may happen to have hoisted, such vessel being in
circumstances which rendered her liable to the suspicion, flrst, that she
was not entitled to the protection of the flag; and, secondly, if not en-
titled to it, she was, either under the law of nations or the provisions
of treaties, subject to the supervision and control of other cruisers.'

''Now, the question is: By what means is this ascertainment to be
effected T

^^ As we understand the general and settled rules of public law in
respect to shipsof-war sailing under the authority of their Oovemment
'to arrest pirates and other public offenders,' there is no reason why
they may not approach any vessels descried at sea for the purpose of
ascertaining their real characters. Such a right of approach seems
indispensable for the fair and discreet exercise of their authority; and
the use of it cannot be justly deemed indicative of any design to insult
or injure those they approach, or to impede them, in their lawful com-
merce. On the other hand, it is as clear a right that no ship is, under
such circumstances, bound to lie by or wait the approach of any other
ship. She is at full liberty to pursue her voyage in her own way, and
to use all necessary precautions to avoid any suspected sinister enter-
prise or hostile attack. Her right to the free use of the ocean is as
perfect as that of any other. An entire equality is presumed to exist.
She has a right to consult her own safety; but at the same time she
must take care not to violate the rights of others. She may use any
precautions dictated by the prudence or fears of her officers, either as
to delay, or the progress or course of her voyage; but she is not at lib-
erty to inflict injuries upon other innocent parties simply because of
conjectural dangers.

137

5 ;;27J vjiifiT Ar(v nzARcn. [chap, ttl

*^iUfiif ih$i t^'M^) thtm ^f^m/jwhed attenri|>i9 to aroid the vessel ap-
inm^UiuKf m 6ffPA Ufft. t^Jfiuply with her eomraandei's order to send him
h^'t \fniH'tn Uft h\n SuhiH'A'A'um^ nor eonftent to be visited or detained^
^)i^%i l« mxS Uf hi'. fhfW^ 1 In force to be nse<l T And if force be used,
wiiy ihitt fotcit h'. )ftwfu]]y ri'f>elled T These questions lead at once to
Ihh i^\tuiu*uUi) ifr\u(*,\p]^.^ i\u: f'.Hmuwe of the British claim. Suppose the
Uii'tvUiiUi vvum*] bi% In trnth, an American vessel, engaged in lawfal
ftmwvtv^^f tind that Mhi^ i\Oi'H not choose to be detained. Snppose she
MnlofA th^ viMit What is the confleqaencef In all cases in which
thf< lH<illf{i<riint riKht of visit exJHts, resistance to the exercise of that
r\lthl Im rfitfimlnd as Just cause of condemnation, both of vessel and
(MU'tfu. Is thai pi^tuiltyi or what other penalty, to be incurred by re-
wNliuirt^ lo visit In time of peacef Or, suppose that force be met by
nit'i^n, iiww roturiHMl for gun, and the commander of the cruiser or some
of his snaiuon bo killed. What description of offense will have been
ottiuintliod f It would be said In behalf of the commander of the cruiser
Mint ho ntlstook tho vossol for a vessel of England, Brazil, or PortugaL
Mttt duos this mistake of his t4tke away from the American vessel the
l»lKht- of solftlolVnsof The writers of authority declare it to be a princi-
ple of imtumi Uw that the privilege of self-defense exists against an
MSNMtUnt who mistakes the ol\)ect of his attack for another whom he
h«d tt rltfht to iissrtiU • • •

** If visiU or visitation^ W not uoinnupanied by search, it might well
\\^x to nuvit on^^tv"^ iuoro)>* idU\ A sight of papers may be demanded,
•♦od |Hi|^M>* ma,v Ih* priHiuotHl* But it is known that slave traders carry
IUIm^ (m^^^i^q^ and diAVivnt ^t't^ of )Hi)M^r^ A seai^h for other papers,
Uu^n^ uu^sf Ih^ i^md^ wh^n^ ^a^picion jastitte$ it« or el$e the whole pro-
NH'^Htini^^ wxMdd b^ i^a^s^iUMry. In $tt$pioioas ea$e«i the laaguage and gen-
^^"(^t A)>|HK^r^n\^ \^f tW of^w M^ ^UH^iijr the hhmiiis ifi aareitadning the
^^AthM\>^ ok^4lvtl\^^(^r ^xt tW w<$s$^L Tht^ \Mur^ on boaxd« also often indi-
NMttV!^ t^^ \Nmvilr>r tlVx^m whSr^ $he cwah^is^ Her k>^-book showing the
^Mf^\ ^^^ \NN^vw aihI ^>^y^:$ \vr bM' v\vra^i:i^ Wr incerttil fin»Hit and
^^x^VMi^^K ^M^ Ai\ t^v^W«wv$ tvvr Im^t \vr a^ia$t Wr« om Wr aDecanon of
sN>KM^s;y4N W^w v^^^Nr^ x: >$ \^vS>Ja:j>. <mn oa^y W aMenained by

''^ \^ ^P^M^ N^ *4.^hix ^^' * v^wjwf WaJ^x^ «\*c Nf <xklM^ ^a. :\^ :<ji<iw k«
^^ ^fv^'^ vii^ V^ Vi^ 5i*wi$v >*^Wc^ Wc rir>^ *s^ <«^iial ^ ^ibe rirics of

>> ^v^n^^^^M ^*t?*>5<v<^ j*:txr. Y >vc> 7*«*,>t isnZ ictc iv- jftinr bar %K3«ai
,>M^fv; *^i^^ V % ^v^ >4h^ Hit;- Yi^A.'v^ i>c 7umviw*>i rr *mittfv I*i <pynMaa

CHAP. XVI.] NO LONGER PERMITTED IN PEACE. [§ 327.

most in analogy with other cases. British cruisers have a right to de-
tain British merchantmen for certain purposes; and they have a right,
acquired by treaty, to detain merchant vessels of several other nations
for the same purposes. But they have no right all to detain an Amer-
ican merchant vessel. This Lord Aberdeen admits in the fullest man-
ner. Any detention of an American vessel by a British cruiser is there-
fore a wrong — a trespass — although it may be done under the belief that
she was a British vessel, or that she belonged to a nation which con-
ceded the right of such detention to the British cruisers, and the tres-
pass, therefore, an involuntary trespass, t • • The Government
of the United States has frequently made known its opinion, which it
now repeats, that the practice of detaining American vessels, though
subject to just compensation, if such detention afterward turns out to
have been without just cause, however guarded by instructions or how-
ever caationsly exercised, necessarily leads to serious inconvenience and
injury. • • •

^^On the whole the Gtovernmeut of the United States, while it has
not conceded a mutual right of visit or search, as has been done by
the parties to the quintuple treaty of December, 1841, does not admit
that, by the law and practice of nations, there is any such thing as a
right of visit, distinguished by well-known rules and defiuitions, from
the right of search.

*'It does not admit that visit of American merchant vessels by Brit-
ish cruisers is founded on any right, notwithstanding the cruisers may
suppose such vessel to be British, Brazilian, or Portuguese. It cannot
but see that the detention and examination of American vessels by
British cruisers has already led to consequences — and it fears that if
continued would still lead to further consequences — highly injurious to
the lawful commerce of the United States.

"At the same time the Oovemment of the United States fully admits

that its flag can give no immunity to pirates, nor to any other than reg-

idarly documented American vessels; and it was upon this view of the

whole case, and with a firm conviction of the truth of these sentiments,

that it cheerfully assumed the duties contained in the Treaty of Wash-

ii^gton, in the hope that thereby causes of difficulty and difTereuce

might be altogether removed, and that the two powers might be ena-

ftbled to act concurrently, cordially, and effectually, for the suppression

of a traffic which both regard as a reproach upon the civilization of the

^e, and at war with every principle of humanity and every Christian

sentiment.'*

JMd.

On April 27, 1843, Mr. Everett wrote to Mr. Webster that he had
iwd to Lord Aberdeen the instructions from which extracts are given
above, and that Lord Aberdeen had said that " he did not know he
siiouid wish to alter a word ; that he concurred with you in the propo-

139

^'327.] VISIT AND SEARCH. [CHAP. XVL

sition that there is no sach distinction as that between a right of search
and a right of visit.^

2 Curtis' Life of Webster, 165.

*^ Our late treaty provides that each country shall keep a naval force
of a specified size on the coa8t of Africa, with the obvious view to re-
move all occasion for any trespass by the one upon the other. We have
proceeded to execute our part of that stipulation, by sending to that
coast four vessels carrying more than eighty guns, a force altogether
sufficient to watch over American commerce, and to enforce the laws
of the United States in relation to the slave trade. There cannot, there-
fore, be any pretense in future for any interference by the cruisers of
England with our flag. Of course, it is not probable that there will be
any further occasions for reclamations on that ground, except in such fla-
grant cases as will leave no room for dispute or doubts. With such a
foundation for lasting harmony between the two countries, at least so
far as this dangerous and exciting subject is concerned, it would seem
to be an obvious dictate of prudence, as well as of propriety, to remove,
as speedily as possible, all existing causes of complaint arising from the
same source. Nothing would contribute more than this to a good un-
derstanding between the two Governments and their i)eople.''

Mr. Upshnr, Sec. of State, to Mr. Everett, Aug. 8, 1843. MS8. Inst., Or. Brit.
In the Brit, and For. St. Pap. for 1843-'44, vol. 32, 433, 565, are given the following
dooamente in respect to the right of search :

Lord Aberdeen to Lord Ashbarton, Feb. 8, 1842 ; Lord Ashbnrton to Lord Ab-
erdeen, May 12, 1842, containing report of United States naval officers as
to slave trade; Mr. Fox to Lord Aberdeen, Mar. 4, 1843; message of the
President of Feb. 28, 1843, as to right of search ; Mr. Webster (Sec. of State)
to the President, Feb., 1843 ; Mr. Everett (London) to Mr. Webster, Dec.
28, 1841 ; Same to same, Dec. 31, 1841 ; Mr. Webster to Mr. Everett, Jan. 29,
1842.

President Fillmore's message of July 30, 1850, as to cases of recent stoppage
and search of American vessels by British men-of-war is in Senate Ex.
Doc. 66, 31s{ Cong., 1st sess.

*<The Governments of Great Britain and France have issued orders
to their naval commanders on the West India station to prevent by force,
if necessary, the landing of adventurers from any nation on the Island
of Cuba with hostile intent. The copy of a memorandum of a conver-
sation on this subject between the charge d'affaires of Her Britannic
Majesty and the Acting Secretary of State, and of a subsequent note of
che former to the Department of State, are herewith submitted, together
with a copy of a note of the Acting Secretary of State to the minister
of the French Bepublic, and of the reply of the latter on the same sub-
ject. These papers will acquaint you with the grounds of this interposi-
tion of the two leading commercial powers of Europe, and with the ap-
prehensions, which this Oovemment could not fail to entertain, that
Buch interposition, if carried into effect, might lead to abuses in deroga-

140

CHAP. XVI.] NO LONGEB PERMITTED IN PEACE. [§ 327,

tion of the maritime rights of the United States. The maritime rigbts
of the United States are founded on a firm, secure, and well-defined
basis; they stand upon the ground of national independence and public
law, and will be maintained in all their full and just extent.

'* The principle which this Government has heretofore solemnly an-
nounced it still adheres to, and will maintain under all circumstances
and at all hazards. That principle is, that in every regularly documented
merchant vessel, the crew who navigate it and those on board of it will
find their protection in the flag which is over them. No American ship
can be allowed to be visited or searched for the purpose of ascertaining
the character of individuals on board, nor can there be allowed any
watch by the vessels of any foreign nation over American vessels on the
coasts of the United States or the seas aqjacent thereto. It will be seen
by the last communication from the British charge d'afEaires to the De-
partment of State, that he is authorized to assure the Secretary of State
that every care will be taken that, in executing the preventive meas-
ures against the expeditions, which the United States Government
itself has denounced as not being entitled to the protection of any Gov-
ernment, no interference shall take place with the lawfhl commerce of
any nation.

^< In addition to the correspondence on this subject herewith submitted,
official information has been received at the Department of State of as-
Boranoes by the French Government that, in the orders given to the
French naval forces, they were expressly instructed, in any operations
they might engage in, to respect the flag of the United States wherever
it might appear, and to commit no act of hostility upon any vessel or
armament under its protection."

Pirandent Fillmore, Second Annaal Message, 1851. (Mr. Webster, Seo. of State. )

<* There is no question in regard to our international relations which
has within a recent period been more fully discussed than that respect-
h)g the limits to the right of visitation and search. This is a belliger-
eat right, and no nation which is not engaged in hostilities can have
any pretense to exercise it upon the open sea. The established doctrine
apon this subject is ^ that the right of visitation and search of vessels^
armed or unarmed, navigating the high seas in time of i^eace does not
belong to the public ships of any nation. This right is strictly a bellig-
erent right, allowed by the general consent of nations in time of war,,
and limited to those occasions.' The undersigned avails himself of the
authority and language of a distinguished writer on international law :
* We again repeat that it is impossible to show a single passage of any
institutional writer on public law, or the judgment of any court by which
that law is administered, either in Europe or America, which will jus-
tify the exercise of such a right on the high seas in time of peace inde-
pendent of special compact. The right of seizure for a breach of the
levenue laws, or laws of trade and navigation of a particular country^

141

§ 327.] VISIT AND SEARCH. [CHAP. XVI.

is quite different. The atmost length to which the ezeicise of thia right
on the high seas has ever been carried in respect to the vessels of another
nation has been to justify seizing them within the territorial jurisdiction
of the state against whose laws they offend, and pursuing them in case
of flight beyond that limit, arresting them on the ocean, and bringing
them in for adjudication before the tribunals of thlat state. This, how-
ever, suggests the Supreme Court of the United States, in the case, be-
fore quoted, of the Marianna Flora, has never been supposed to draw
after it any right of visitation or search. The party, in such case, seizes
at his peril. If he establishes the forfeiture he is justified.'

<^ This is not x>eculiarly an American doctrine ; it has the sanction of
the soundest expositors of international law. Upon the ocean in time
of peace, that is, among nations not in war, all are entirely equal. • • •

<< The most distinguished judge that ever presided over the British
high court of admiralty has expressed himself clearly and emphatically
on the subject of the right of visit and search, and declared ^ that no au-
thority can be found which gives any right of visitation or interruption
over the vessels or navigation of other states on the high seas, except
what the right of war gives to belligerents against neutrals.'"

Mr. Maroy, Sec. of State, to Mr. Cneto, Mar. 28, 1865. MSS. Notes, Spain.

^^Tbe Spanish Government claims the right to search or detain foreign
vessels in its own territorial waters for the purpose of ascertaining their
character, but it is not understood that it meets this case with a posi-
tive declaration that the £1 Dorado was within its territorial waters.

^^ The United States will never concede that, in the thoroughfares of
commerce between Gape San Antonio and Yucatan, or between the Key
of Florida and the Guban coast, the territorial waters of Spain extend
beyond cannon shot or a marine league. Considering the vast amount
of property transported over these thoroughfares it is of the greatest
importance to the interests of commerce that the extent of Spanish
jurisdiction in these two straits should be accurately understood."

Mr. Maroy, Sec. of State, to Mr. Esoalante, Oct. 29, 1855; iM. Supra, i 38.

<(Mr. Webster, in a dispatch in which he investigated this subject,
correctly observed that what in Great Britain and the United States is
known as the right of search is called by the continental jurists the
right of visit, and then added, ' there is no such distinction as the Brit-
ish Gtovernment maintains between visit and search,' and he further re-
marked that the visitation of a vessel to answer any valuable purpose
must often aud necessarily lead not merely to the sight of papers, per-
haps carried with a view to deceive, and produced on demand, but to a
search for other papers, and an inspection of the log-book, showing the
previous course and- events of the voyage, to an examination into the
language and general appearance of the crew, into the cargo on board,
and the internal fitment and equipment of the vessel. ' These matters,
H is obvious,' he continues, ^ can only be ascertained by rigorous search/

142

CHAP. XVI,] NO LONGER PERMITTED IN PEACE. [§ 327.

and the leaBons originally urged by the British Government for the as-
sertion and prosecution of this pretension furnish by their very nature
a powerful argument against its validity. It was contended in its sup-
port that without its exercise the stipulations of certain antislave-trade
treaties (to which the United States were not a party) could not be en-
forced, and that Hhe present happy concurrence of the states of Chris-
tendom in this great object (the suppression of the slave trade), not
merely justifies but renders indispensable the right now claimed and
exercised by the British Government ; ' and it was also contended, that,
without it, even the laws of England might be set at defiance by her
own subjects ; and these considerations were formally presented to this
Government by the British Government in justification of this attempt
to change the maritime law of the world. But they are rejected by the
United States, who claim inviolability for their vessels, and hold on to
that great code whose integrity it is the interest of the strong as well
as the weak to maintain and defend, and they deny the right of any
power or of any partial combination of powers to interpolate into it
any new principle, however convenient this may be found." .

Mr. Cass, See. of State, to Lord Napier, Apr. 10, 1858. M8S. Notes, Or. Brit.

In instructions by Lord Malmesbury to Lord Napier June 11, 1858
(Brit, and For. St. Pap., 1857-'58, vol. 60, 537), is the following :

" General Cass observes, in his note to Mr. Napier of April 10, 1858,
that ^ a merchant- vessel upon the high seas is protected by her national
character. He who forcibly enters her, does so upon his own respon-
sibility. Undoubtedly, if a vessel assumes a national character to
which she is not entitled, and is sailing under false colors, she cannot
be protected by this assumption of a nationality to which she has no
daim. As the identity of a person must be determined by the officer
Ix^ng a process for his arrest, and determined at the risk of such
officer, so must the national identity of a vessel be determined, at the
like hazard to him who, doubting the flag she displays, searches her to
ascertain her true character. There no doubt may be circumstances
which would go far to modify the complaints a nation would have a
right to make for a violation of its sovereignty. If the boarding officer
had just grounds of suspicion, and deported himself with propriety in
tiie p^formance of his task, doing no injury, and peaceably retiring
when satisfied of his error, no nation would make such an act the sub-
ject of serious reclamation.' His Majesty's Government (continues
Lord Malmesbury), agree entirely in this view of the case, and the
question, therefore, b^mes one solely of discretion on the part of the
boarding officer." But General Cass adds to the extract above given
the following important qualification, overlooked by Lord Malmesbury :
^^It ii one thing to do an act avowedly illegalj and excme it by the attending
dreumstances ; and it is another and quite a different thing to claim a right
of aetianj and the rights also, of determining when^ and hotc^ and to what ex-
tent, it shall he exercised. And this is no barren distinction^ so far as the
interest of this country is involved, but it is closely connected with an ob-
ject dear to the American people — the freedom of their citizcTis upon the
iireat highway of the worldP

143

$327.] VISIT AND SEABCH. [CHAP. XVI

^^Oar old Palmerstonian haters are said to be already on his (Glaren-
don's) track ; but they will be kept at bay by the threat of exposing the
orders issned to British naval officers by the former Gh>vemment, which
are hinted to have involved not merely a search against slave traders^
but one also against WiUiam Walker and his associate filibosters. At
the royal ball, the night before last, I was assured, with emphasis, by
one of the ministry, that he positively Jcnew what bad caused and mo-
tived the sudden outrages upon our vessels ; he did not feel at liberty
to communicate it, but it would come out. The men now in power had
nothing to do with it. He rather thought too much had been conceded ;
but, he added, I am content, as, rather than bring our two countries into
collision, I would concede a great deal more."

Mr. DaUaOy minister to Great Britain, to Mr. Caaa, See. of State, Jane 11, 1656.
2 Dallaa, Letters from London, 72.

^' No nation can exercise a right of visitation and search upon the
common and unappropriated parts of the ocean, except firom the bel-
ligerent chum.''

Lord StoweU, as adopted by Mr. Cass, See. of State, in instenctions to Mr. Dal-
las, Jane 30, 1858. M88. Inst., 6r. Brit.

^^It is my earnest desire that every misunderstanding with the Gov-
ernment of Great Britain should be amicably and speedfly adjusted.
It has been the misfortune of both countries, almost ever since the
I^riod of the Revolution, to have been annoyed by a succession of irri-
tating and dangerous questions, threatening their friendly relations.
TMb has partiaQy prevented the fidl development of those feelings of
mutual friendship between the people of the two countries, so natural
in themselves and so conducive to their common interest Any serious
interruption of the commerce between the United States and Great
Britain would be equally injurious to both. In &ct, no two nations
have ever existed on the fiace of the earth which could do each other so
much good or so much harm.

(* Entertaining these sentiments I am gratified to inform you that
the long-pending controversy between the two Governments, in relation
to the question of visitation and search, has been amicably adjusted.
The claim, on the part of Great Britain, forcibly to visit American ves-
sels on the high seas in time of peace, could not be sustained under the
law of nations, and it had been overruled by her own most eminent
jurists. This question was recentiy brought to an issue by the repeated
acts of British cruisers in boarding and searching our merchant vessels
in the Gulf of Mexico and the adjacent seas. These acts were the more
injurions and annoying, as these waters are traversed by a large por-
tion of the commerce and navigation of the United States, and th<sir
free and unrestricted use is essential to the security of the coastwise
trade between the different States of the Union. Such vexatious inter-
ruptions could not £iul to excite the feelings of the country, and to re-
quire the interposition of the Government. Bemonstrances were ad-
dressed to the British Government against these violations of our ri|^ts

144

CHAP. XVI.] NO LONGEH PERMITTED IN PEACE. [§ 327.

of so^ereiguty, and a naval force was at the same time ordered to the
Cuban waters, with directions ' to protect all vessels of the United
States on the high seas from search or detention by the vessels-of-war
of any other nation.' These measures received the unqualified and even
enthusiastic approbation of the American people. Most fortunately,
however, no collision took place, and the British Government promptly
avowed its recognition of the principles of international law upon this
subject as laid down by the Government of the United States in the
note of the Secretary of State to the British minister at Washington
of April 10, 1858, which secure the vessels of the United States upon
the high seas from visitation or search in time of peace, under any cir-
cumstances whatever. The claim has been abandoned in a manner
reflecting honor on the British Government, and evincing a just regard
for the law of nations, and cannot fail to strengthen the amicable rela-
tions between the two countries."

President Bachanan, Second Annual Message, 1858.

" I have to inform your lordship that Her Majesty's Government
have received with lively satisfaction the note which General Cass ad-
dressed to your lor46hip on the 8th of November.

'^ The friendly tone in which it is written, and the high appreciation
which it displays of the importance of terminating the irritating discus-
sions in which both countries have been so long involved, cannot but
tend to render that termination near at hand and i)ermanent.

^* I feel it to be a duty to do justice to the accuracy with which Gen-
eral Cass has recapitulated the circumstances under which the contro-
versy has been sustained, and the efforts hitherto employed to settle it
have failed."

Earl Mahneaboiy to Lord Napier, Dec. 8, 1858. Brit, and For. St. Pap. (1857-^},

▼oL 48, 745.
A report by Mr. Caas, Sec. of State, Dec. 15, 1858, on Tisitation by officers ot

the British navy of American yessels in the waters of New Mexico is given

in Honae Ex. Doc. 11, 35th Cong., 2d sess.

The President, while ^' earnestly opposed to the African slave trade,
and thus determined to give full effect to the laws of the United States
for its suppression, cannot permit himself in so doing to concur in any
principle or assent to any practice which he believes would be inconsist-
ent with that entire immunity of merchant vessels niK)n the high seas
in time of peace for which this Government has always contended, and
in whose preservation the commerce of the world has so deep an inter-
est"

Mr. Caas, Sec. of State, to Mr. Sartiges, Jan. 1S>, 1859. MS8. Notes, France.

*^ The forcible visitation of vessels upon the ocean is prohibited by the
law of nations, in time of peace, and this exemption from foreign juris-
diction is now recognized by Great Britain, and, it is believed, by all
other commercial i)owers, even if the exercise of a right of visit were
essential to the suppression of the slave trade. Whether such a right

8. Mis. 162— VOL. m 10 145

§ 327.] VISIT AND SEARCH. [CHAP. XVL

should be conceded by one nation to its co-states of the world is a qaes-
tiou for its own consideration, involving very serioas consequences,
but which is little likely to encounter any pr^udiced feelings in favor
of the slave trade in its solution nor to be influenced by them. But
there is just reason to believe that the value of a right of visitation,
as a means of putting an end to this traffic, has been greatly overrated.
The object of such visitation is to ascertain the national character of
the vessel. If found to belong to the same nation as the cruiser mak-
ing the visit, and violating its laws, she may be seized. If belonging
to another nation she must be released in whatever employment she
may be engaged, unless indeed she has become a pirate, in which case
she is liable to be captured by the naval force of any civilized power.
If the United States maintained that by carrying their flag at her
mast-head any vessel became thereby entitled to the immunity which
belongs to American vessels, they might well be reproached with assum-
ing a position which would go far toward shielding crimes upon the
ocean from punishment. But they advance no such pretensions, while
they concede that if, in the honest examination of a vessel sailing un-
der American colors^ but accompanied by strongly marked suspicious
circumstances, a mistake is made, and she is found to be entitled to the
flag she bears, but no injury is committed and the conduct of the board-
ing party is irreproachable, no Government would be likely to make a
case thus exceptional in its character a subject of serious reclama-
tion. • • •

" The police over their own vessels being a right inherent in all in-
dependent states, each of them is responsible to the public opinion of
the world for its faithful preservation, as it is responsible for the exe-
cution of any other duty. The measures it will adopt, must depend
upon its own judgment, and whether these are efficient or inefficient no
other nation has a right of interference ; and the same principles are
applicable to territorial jurisdiction. Good laws it is the duty of every
Government to provide, and also to make suitable provision for their
just administration. But because offenders sometimes escape, nations
are not therefore disposed to admit any participation in the execution
of these laws, even though such a measure might insure their more
faithful execution."

Mr. Cass, Sec. of State, to Mr. DaUas, Feb. 23, 1859. MSS. iDst., Or. Brit.

'^ This country is desirous of the extinction of the slave trade, and is
employing a larger force for that purpose in proportion to its naval
means than any other power whatever. But it has other great interests
upon the ocean — the immunity of its flag, the protection of its citizens,
and the security of its commerce — which it does not intend to put to
hazard by permitting the exercise of any foreign jurisdiction over its
merchant vessels."

Same to same, Mar. 31, I860 ; ibid.
146

CHAP. XVI.] NO LONGER PERMITTED IN PEACE. [§ 327.

'^ It mast be a source of sincere satisfaction to all classes of oar fellow
<2itizenS) and especially to those engaged in foreign commerce, that the
«laim on the part of Great Britain forcibly to visit and search American
merchant vessels on the high sea« in times of peace has been abandoned."

President BachanaD, Fourth Annual Message, 1860.

As '^o correspondence in respect to the treaty with Great Britain for search of

Sv^Tcrs, see Mr. Seward, Sec. of State, to Mr. Adams, July 31, 1862. MSS.

Iist.,Gr. Brit.

" The right of search for contraband is a right to be exercised against
a pablic enemy only on the high seas. It cannot there lawfally be ex-
ercised against a neatral who has not recognized both parties as bellig-
erents. If, therefore, the commanders of oar men-of-war shoald ascer-
tain that a vessel of the United States is aboat to be searched on the
high seas by a Spanish vessel, they may be aathorized to resist sach
search with all the force at their disposal. If, also, they shoald fall iu
with a vessel of the United States which has been cajptnred by a Span-
iard on the high seas on the groand of being a carrier of contraband, or
on any other pretext involving a claim to belligerent rights in that
quarter, they may be aathorized to recaptare the prize if they shoald
feel competent for that parpose. The maritime jurisdiction of Spain
may be acknowledged to extend not only to a marine league beyond
the coast of Cuba itself, but also to the same distaace from the coast
line of the several islets or keys with which Cuba itself is surrounded.
Any acts of Spanish authority within that line cannot be called into
question, provided they shall not be at variance with law or treaties.

Mr. Fish, Sec. of State, to Mr. Borie, May 18, 1869. MSS. Dom. Let.

The right of foreign cruisers to search vessels of the United States
in times of peace on the high seas is denied by t'^ United States, and
when such search is insisted on reparation will ^e required.

Mr. Fish, Sec. of State, to Mr. Roberts, Jan. 13, 18?2. MSS. Notes, Spain.

The steamer Yirginius, bearing the flag of the United States, was
captared by the Spanish war steamer Tornado on November 3, 1873, on
waters claimed by the Spanish authorities to be territorial, and brought
to Cuba with her crew and passengers, amounting on the whole to nearly
one hundred and seventy prisoners, the charge being ^< piracy" and con-
nection with certain Ouban insurgents. (See supra^ S 230.)

To this transaction the following papers refer :

" The steamer Virginias was, on the 26th day of September, 1870, duly
registered at the port of New York as a part of the commercial marine
of the United States. On the 4th of October, 1870, having received
the certificate of the register in the usual legal form, she sailed from
the port of New York, and has not since been within the territorial
jurisdiction of the United States. On the 31st day. of October last,
while sailing under the flag of the United States, on the high seas, she
was forcibly seized by the Spanish gunboat Tornado, and was carried
into the port of Santi \go de Cuba, where fifty-three of her passengers

147

§ 327.] VISIT AND SEARCH. [CHAP. XVI^

and crew were inhamanly, and, so far at least as relates to those who
were citizens of the United States, without due process of law, put to
death.

^< It is a well-established principle, asserted by the United States from
the beginning of their national independence, recognized by Great
Britain and other maritime powers, and stated by the Senate in a reso-
lution passed unanimously on the 16th of Jane, 1858, that ^American
vessels on the high seas in time of peace, bearing the American flag,
remain under the jurisdiction of the country to which they belong ; and
therefore any visitation, molestation, or detention of such vessel by force^
or by the exhibition of force, on the part of a foreign power, is in dero-
gation of the sovereignty of the United States.'

^^ In accordance with this principle the restoration of the Virginias,,
and the surrender of the survivors of her passengers and crew, and a
due reparation to the flag, and the punishment of the authorities who-
had been guilty of the illegal acts of violence, were demanded. The
Spanish Government has recognized the justice of the demand, and
has arranged for the immediate delivery of the vessel, and for the sur-
render of the survivors of the passengers and crew, and for a salute to
the flag, and for proceedings looking to the punishment of those who
may be proved to have been guilty of illegal acts of violence toward
citizens of the United States, and also toward indemnifying those who
may be shown to be entitled to indemnity. A copy of a protocol of a
conference between the Secretary of State and the Spanish minister, in
which the terms of this arrangement were agreed to^ is transmitted
herewith.

'' The correspondence on this subject with the legation of the United
States in Madrid was conducted in cipher and by cable, and needs the
verification of the actual text of the correspondence. It has seemed
to me to be due to the importance of the case not to submit this cor-
respondence until the accurate text can be received by mail. It is
expected shortly, and will be submitted when received.''

President Grant, Fifth Annual Message, 1873.

^^ In my annual message of December last 1 gave reason to expect that
when the full and accurate text of the correspondence relating to the
steamer Yirginius, which had been telegraphed in cipher, should be-
received, the papers concerning the capture of the vessel, the execution
of a part of its passengers and crew, and the restoration of the ship and
the survivors would be transmitted to Congress.

<' In compliance with the expectations then held out, I now transmit
the papers and correspondence on that subject.

" On the 26th day of September, 1870, the Virginius was registered in
the custom-house at l^ew York as the property of a citizen of the United
States, he having first made oath, as required by law, that he was 'the
true and only owner of the said vessel, and that there was no subject

148

CHAP. XVI.] "VIBGINIUS" CASE, [§ 32T.

or citizen of any foreign prince or state, directly or indirectly, by way of
trust, confidence, or otherwise, interested therein.'

'' na\dng complied with the requisites of the statute in that behalf,
she cleared in the nsual way for the port of Curajoa, and on or about
the 4th day of October, 1870, sailed for that port. It is not disputed
that she made the voyage according to her clearance, nor that, from that
day to this, she has not returned within the territorial jurisdiction of the
United States. It is also understood that she preserved her American
papers, and that when within foreign ports she made the practice of
putting forth a claim to American nationality, which was recognized by
the authorities at such ports.

"When, therefore, she left the port of Kingston, in October last, under
the flag of the United States, she would appear to have had, as against
all powers except the United States, the right to fly that flag, and to
«laim its protection, as enjoyed by all regularly documented vessels reg-
istered as part of our commercial marine.

" ISo state of war existed, conferring upon a maritime power the right
to molest and detain upon the high seas a documented vessel; and it
<;annot be pretended that the Yirginius had placed herself without the
pale of all law by acts of piracy against the human race.

"If her papers were irregular or fraudulent, the offense was one against
the laws of the United States, justiciable only in their tribunals.

" When, therefore, it became known that the Yirginius had been capt-
ured on the high seas by a Spanish man-of-war; that the American
flag had been hauled down by the captors ; that the vessel had been
<^rried to a Spanish port; and that Spanish tribunals were taking juris-
diction over the persons of those found on her, and exercising that juris-
diction upon American citizens, not only in violation of the rules of in-
ternational law, but in contravention of the provisions of the treaty of
1795, 1 directed a demand to be made upon Spain for the restoration of
the vessel, and for the return of the survivors to the protection of the
United States, for a salute to the flag, and for the punishment of the
offending parties.

" The principles npon which these demands rested could not be seri-
ously questioned, but it was suggested by the Spanish Government
that there were grave doubts whether the Yirginius was entitled to the
character given her by her papers ; and that therefore it might be
proper for the United States, after the surrender of the vessel and the
survivors to dispense with the salute to the flag, should such fact be
€9tablished to their satisfaction.

" This seemed to be reasonable and just. I therefore assented to it,
on the assurance that Spain would then declare that no insult to the
flag of the United States had been intended.

" I also aathorized an agreement to be made that, should it be shown
to the satisfaction of this Government that the Yirginius was improp-
«ly bearing the flag, proceedings should be instituted in our courts fbr

149

§ 327.] VISIT AND SEAKCH. [CHAP. XVI.

the panishment of the offense committed against the United States.
On her part Spain undertook to proceed against those who had offended
the sovereignty of the United States, or who had violated their treaty
rights.

" The surrender of the vessel and the survivors to the jurisdiction of
the tribunals of the United States was an admission of the principles
upon which our demands had been founded. I therefore had no hesi-.
tation in agreeing to the arrangement finally made between the two
Governments — an arrangement which was moderate and just, and cal-
culated to cement the good relations which have so long existed between
Spain and the United States.

" Under this agreement the Virginius, with the American flag flying^
was delivered to the Navy of the United States at Bahia Honda, in the
Island of Cuba, on the 16th ultimo. She was in an unseaworthy condi-
tion. In the passage to New York she encountered one of the most
tempestuous of our winter storms. At the risk of their lives the offi-
cers and crew placed in charge of her attempted to keep her afloat.
Their efforts were unavailing and she sank off Gape Fear. The pris.
oners who survived the massacres were surrendered at Santiago de
Cuba on the 18th ultimo, and reached the port of New York in safety.

^'The evidence submitted on the part of Spain to establish the fact
that the Virginius at the time of her capture was improperly bearing
the flag of the United States is transmitted herewith, together with
the opinion of the Attorney -General thereon, and a copy of the note
of the Spanish minister, expressing, on behalf of his Government, a dis-
claimer of an intent of indignity to the flag of the United States."

President Grant, Special Message, Jan. 5, 1874.

The following correspondence, being part of that submitted in the
message above given, tends to explain the position taken by the Gov-
ernment :

^^The capture on the high seas of a vessel bearing the American flag

presents a very grave question, which will need investigation, and the

summary proceedings resulting in the punishment of death, with such

rapid haste, will attract attention as inhuman and in violation of the

civilization of the age. And if it prove that an American citizen has

been wrongfully executed, this Government will require most ample

reparation.''

Mr. Fish, Sec. of State, to Mr. Sickles, Nov. 7, 1873 (telegram). MSS. Inst.,.
Spain. ; For, Rel., 1874.

" You will receive by the mail of this date a copy of the telegrams
which have been sent to you with reference to the capture of the Vir-
ginius, and also of tbose from you relating to the same subject, as they
have been received and deciphered here.

" The first intelligence was received here * late in the evening of the
5th instant, from Mr. Hall, acting consul-general in Havana. I was-

150

CHAP. XVI.] ''VIBGINIUS" CASE. [§327.

absent from Washington the 6th, returning on the evening of the Cth.
Your telegram was received announcing the instructions of the Madrid
Government not to inflict any penalties until the matter should have
been reported there.

^* On the 7th the public journals announced the execution on the 4th of
four persons who had been captured on the vessel, one of whom was rep-
resented to be an American, who is said to have entered the military*
service of the insurrectionists in Cuba, and who claimed to hold a mil-
itary commission from the insurrectionary authorities, and to have been
in actual military service on the island.

^' The execution, as it is called, of those persons was forced on with in-
decent and barbarous haste, and in defiance of all humanity and regard
to the usages of the civilized world.

'' It was perpetrated in advance of the knowledge of the capture reach-
ing Havana or Madrid, and it would seem to have been thus precipi-
tated in cold blood and vindictiveness, to ^inticipate and prevent the
interposition of any humane restraints upon the ferocity of the local
authorities from the Government at Madrid or its representative in
Havana.

*^ This is but another instance in the long catalogue of the defiance of
the home Government by those intrusted with authority in Cuba, and
adds another page to the dark history of bloody vengeance and cruel
disregard of the rules of civilized war and of common humanity which
the military and other officials in Cuba have but too frequently made
part of the history of Spain's Government and of its colony.

" The promptness with which the Madrid Government responded to
your suggestion, and forwarded instructions to the captain-general to
await orders before inflicting any penalties on the passengers or crew
of the Yirginius, is accepted as evidence of their readiness to administer
justice, and gives promise of the promptness with which they will con-
demn and punish the hot thirst for blood and vengeance which was ex-
hibited at Santiago de Cuba.

^^Condemnation, disavowal, and deprecation of the act will not be ac-
cepted by the world as sufficient to relieve the Government of Spain
fipom participation in the just responsibility for the outrage. There must
be a signal mark of displeasure and a punishment to which the civilized
world can point, and which other subordinate or local officials will have
cause to look to as a beacon on a dangerous rock, to be forever after
avoided.

" You will represent this to the Government at Madrid, and you will
further very earnestly, but avoiding any just cause of offended sensi-
bility, represent that the failure of some speedy and signal visitation of
punishment on those engaged in this dark deed canm)t fail to be re-
garded as approval of the act, and in view of the orders given to abstain
from any punishments which the home Government had passed upon

151

^ 327.] VISIT AND SEARCH. [CHAP. XVL

tbem, will be regarded as admission of the inability of the Government
of the peninsula to control the affairs of the Island of Gnba. The omis-
sion to punish ^he acts of the 4th November, in Santiago de Cuba,
will be a virtual abandonment of the control of the island^ and cannot be
regarded otherwise than as a recognition that some power more potent
than that of Spain exisits within that colony.

"You may read what precedes to the minister, and you may say that
this Government has confidence in the sincerity and good faith of the
present Government of Madrid, and of its desire to have executed in
Cuba the promises made in Madrid.

"We fear, however, that unaided, Spain has not the power to control
the resistance to its authority under the attitude and profession of loy-
alty and of support which is more formidable than the insurrection of
Yara to her continued ascendency. The rebellion and insurrection of
the Casino Espagnole and its pretorian volunteers, present the most for-
midable opposition to the authority of the peninsula.

" With regard to the Yirginius, we are still without information as
to the particulars of her capture. There are conflicting representations
as to the precise place of capture, whether within British waters or on
the high seas, and we have no information as to whether she was first
sighted within Spanish waters and the chase commenced there, or
whether it was altogether in neutral waters.

" Mr. Hall has been requested to furnish full particulars, and a vessel
of the Navy has been dispatched thither. Mr. Hall informs me that
telegraphic communication between Havana and Santiago de Cuba has
been interrupted.

"There is also some doubt as to the right of the Virginius to carry
the American flag, or of her right to the papers which she unquestion-
ably carried. This is being investigated, and, of course, no admission
of doubt as to the character of the vessel can be allowed until it become
apparent that the Government cannot sustain the nationality of the ves-
sel, while the doubt imposes on the Government the necessity of caution
in ascertaining the facts before making a positive demand.

"While writing this instruction, a telegram from Mr. Hall mentions
that Havana papers of this morning published a statement, apparently
from official sources, that the captain and thirty-six of the crew of the
Virginius and sixteen others were shot on the 7th and 8th instant.

"Such wholesale butchery and murder is almost incredible; it would
be wholly incredible but for the bloody and vengeful deeds of which
Cuba has been the theater. No Government deserves to exist which
can tolerate such crimes. Nature cries aloud against them. Spain will
be loud and earnest in punishing them, or she will forfeit her past good
name. »

" Your request to the Government that our consul be permitted to see
and to confer with American citizens who may be prisoners at Santiago

152

CHAP, xvl] '^viroixius" case. [§327.

(le Cuba was considerate, and is approved ; but it had been anticipated
through the Hayana consalate."

Same to same, Nov. 12, 1873. M8S. Inst., Spain; ibid.

"I have the honor to forward a copy of a note passed to the minister
of state yesterday, requesting that any American citizens in custody of
the jvQthorities at Santiago de Cuba be allowed all the privileges guar-
aDfeed to them by the seventh article of the treaty of 1795, and that the
cousol of the United States at that place be permitted to have tree com-
munication with the accused. This suggestion seemed to me proper, in
\m of what happened in March last in the case of the sailors of the
bark Union, and your instructions in that case."

Mr. Sickles to Mr. Fish, Not. 12, 1873. MSS. Dispatches, Spain ; ibid.

'*The case of the Deerhound, of which I cabled a brief statement this
morning, was not settled without considerable hesitation and delay on
the part of this Government. Mr. Carvajal insisted for some time that
It was a proper subject for the decision of a prize court, and that until
the judgment of that tribunal should be given, no diplomatic reclamation
could be entertained. This ground was not satisfactory to Oreat Britain.
It was replied that no declaration of war had been made by Spain ; that
the parties to the contest had not been recognized as belligerents; that
DO jurisdiction over such a capture could be acquired by a prize court
ID time of peace ; that the act of the Spanish cruiser was a mere trespass
CD the high seas, from which no right of condemnation could possibly
follow. &reat Britain therefore urged that the matter was in the exclu-
sive and sole cognizance of the executive authorities ; and considering
that the facts of the case and the principles of public law applicable to
them were indisputable and clear, the immediate release of the vessel,
passengers, and crew was demanded. The Spanish Government at
length yielded to the arguments ably presented by Mr. MacDonell, the
British charge d'affaires, and made ample reparation."

Ibid.

^* The Deerhound, an English vessel with arms and munitions of war
for Don Carlos, captured in July last off this coast, on the high seas, by a
Spanish gunboat, was released, with her crew and passengers, including
one or more prominent Carlists, on the demand of Great Britain."

Same to same (telegram), Nov. 12, 1673; ibid.

** Conference appointed for this afternoon adjourned by minister, be-
cause he had refseived at a late hoar last night information from the
captain-general that forty-nine of the persons on board the Virginias
had been shot on the 7th and 8th instant. Mr. Carvajal said he com-
municated this report to me with profound regret. President Castelar
had shown the deepest feeling in view of this intelligence. It appears
the orders of this Government, sent on the 6th, did not reach Havana
until the 7th, and could not be transmitted to Santiago in time to pre-
vent what was done. General Jovellar says he will stop any more
slaughter. Further reports called for at two this morning, and I am
promised explanations as soon as they can be given. The Madrid pa-
pers of last evening and this morning announced that fifty executions
had taken place."

Same to same (telegram), Nov. 13, 1^73 ; ibid.

153

$ 327.] VISIT AND SEARCH. [CHAP. XVL

<< Your telegram aiiDonncing adjoarnment of conference received.

" Unless abundant reparation shall have been voluntarily tendered,
yon will demand the restoration of the Yirglnius, and the release and
delivery to the United States of the persons captured on her who have
not already been massacred, and that the flag of the United States be
saluted in the port of Santiago and the signal punishment of the offi-
cials who were concerned in the capture of the vessel, and the execu-
tion of the passengers and crew.

" In case of refusal of satisfactory reparation within twelve days from
this date, you will, at the expiration of that time, close your legation,
and will, together with your secretary, leave Madrid, bringing with yon
the archives of the legation. You may leave the printed documents
constituting the library in charge of the legation of some friendly power,
which you may select, who will consent to take charge of them."

Mr. Fish, Sec. of State, to Mr. Sickles (telegram), Nov. 14, 1873. MSS. Iiut.,
Spain; ibid,

'' Hall telegraphs this date the confirmation of report of further ex-
ecution on 12th instant, and that Havana papers of yesterday pub-
lished account of execution of flfty-seven other prisoners, and that only
some eighteen will escape death, but that nothing official was received.
You will represent this report to minister. These repeated violations
of assurances of good- will and of the prohibiten of murder by the au-
thorities in Santiago inorease the necessity of full and speedy repara-
tion. There is but one alternative if denied or long deferred. If Spain
cannot redress the outrages perpetrated in her name in Cuba, the United
States will. If Spain should regard this act of self-defense and justi-
fication, and of the vindication of long-continued wrongs, as necessi-
tating her interference, the United States, while regretting it, cannot
avoid the result. You will use this instruction cautiously and discreetly,
avoiding nnnecessarily exciting any proper sensibilities, and avoiding
all appearance of menace ; but the gravity of the case admits no doubt,
and mnst be fairly and frankly met."

Same to same (telegram)^ Nov. 15, 1873; ibid.

<' Consul at Havana telegraphs that the report of further executions
communicated by him and mentioned in my telegram of 15th was offi-
cially contradicted, and that until 13th the total number of executions
was fifty-three, thus confirming minister's statement in note to yon.

^^ Last evening Spanish minister communicated to me, by direction of
his Government, a telegram of yesterday's date, declaring the resolu-
tion of his Government to abide by the principles of justice and to ob-
serve international law, to comply with the letter of treaties, and to
punish all those who shall have made themselves liable to punishment
regardless of their station, and to make reparation if right should re-
quire it, urging at the same time that a knowledge of facts is necessary

154

CHAP. XVI.] "VIBGINIUS" CASE. [^ 327.

to proceed with the jadgmeut required by the gravity of the case, and
that the news which had reached them, like that received here, must be
confased.

^^ The telegram to the Spanish minister is subsequent in date to the
minister's note of 17th to you, and may be regarded as a reconsidera-
tion or later decision of the Government. Appreciating this fact, and
determined to continue to be right in the position he has assumed, the
President holds that the demand for a proper length of time to learn
the exact state of the facts is reasonable. In view of this request you
will defer your immediate departure from Madrid, and await further
instructions.''

Same to same (telegram), Nov. 19, 1873; ibid.

^< Instruction sent yesterday by cable authorizes you to defer closing
legation in order to allow a reasonable time to Spanish Government to
ascertain facts in response to their request through minister here, pre-
sented on 18th instant. No other postponement has been agreed to,
and minister was informed that a satisfactory settlement would be ex-
pected by 26th.''

Same to same (telegram), Nov. 20, 1873 ; ibid.

" I have the honor to acknowledge the receipt of your letter of the
11th instant, submitting to me a large number of documents and depo-
sitions, and asking for my opinion as to whether or not the Yirginius,
at the time of her capture by the Spanish man-of war Tornado, was
entitled to carry the flag of the United States, and whether or not she
was carrying it improperly and without right at that time.

" This question arises under the protocol of the 29th ultimo, between
the Spanish minister and the Secretary of State, in which, among other
things, it is agreed that on the 25th instant Spain shall salute the flag
of the United States. But it is further provided that < if Spain should
prove to the satisfaction of the Government of the United States that
the Yirginius was not entitled to carry the flag of the United States,
and was carrying it, at the time of her capture, without right and im-
properly, the salute will be spontaneously dispensed with, as in such
case not being necessarily requirable ; but the United States will ex-
pect, in such a case, a disclaimer of the intent of indignity to its flag in
the act which was committed.'

" Section 1 of the act of December 31, 1792, provides that ships or
vessels registered pursuant to such act, ' and no other (except such as
shall be duly qualified according to law for carrying on the coasting
iTade and fisheries, or one of them) shall be denominated and deemed
ships or vessels of the United States, entitled to the benefits and priv-
ileges appertaining to such ships.' Section 4 of the same act provides
for an oath, by which, among other things, to obtain the registry of a
vessel, the owner is required to swear 'that there is no subject or citi-
len of any foreign prince or state, directly or indirectly, by way of trust,

155

^ 327.] VISIT AND SEARCH. [CHAP. XVL

confidence, or otherwise, interested in snch ship or vessel, or in the profits
or issnes thereof.'

" Obviously, therefore, no vessel in which a foreigner is directly or in-
rectly interested is entitled to a United States registry, and if one is
obtained by a false oath as to that point, and the fact is that the vessel
is owned, or partly owned, by foreigners, she cannot be deemed a vessel
of the United States, or entitled to the benefits or privileges appertain-
ing to snch vessels.

" The Virginius was registered in New York on the 26th of September,
1870, in the name of Patterson, who made oath as required by law, bat
the depositions submitted abundantly show that, in fact, Patterson was
not the owner at that time, but that the vessel was the property of cer-
tain On ban citizens in New York, who furnished the necessary funds for
her purchase. J. E. Shepherd, who commanded said vessel when she
left New York with a certificate of her register in the name of Patter-
son, testifies positively that he entered into an agreement to command
said vessel at an interview between Quesada, Mora, Patterson, and
others, at which it was distinctly understood that the Virginius belonged
to Quesada, Mora, and other Cubans, and that said Mora exhibited to
him receipts for the purchase-money and for the repairs and supplies
apon said steamer, and explained to him how said .funds were raised
among the Cubans in New York. Adolpho De Yarona, who was the
secretary of the Cuban mission in New York at the time the Virginius
was purchased, and afterwards sailed in her as Quesada's chief of staff,
testifies that he was acquainted with all the details of the transaction,
.and knows that the Virginius was purchased with the funds of the
Cubans, and with the understanding and arrangement that Patterson
should appear as the nominal owner, because foreigners could not ob-
tain a United States register for tl^e vessel. Francis Bowen, Charles
Smith, Edward Greenwood, John McCann, Matthew Murphy, Ambrose
Eawlings, Thomas Gallagher, John Furlong, Thomas Anderson, and
George W. Miller, who were employed upon the Virginius in various
capacities after she was registered in the name of Patterson, testify
clearly to the effect that they were informed and understood while they
were upon the vessel that she belonged to Quesada and the Cubans
represented by him, and that he navigated, controlled, and treated said
vessel in all respects as though it was his property.

'< Nothing appears to weaken the force of this testimony, though the
witnesses were generally subjected to cross-examination ; but, on the
contrary, all the circumstances of the case tend to its corroboration.
With the oath for registry the statutes requires a bond to be given,
signed by the owner, captain, and one or more sureties; but there were
no sureties upon the bond given by Patterson and Shepherd. Pains
have been taken to ascertain if there was any insurance upon the vessel,
but nothing of the kind has been found, and Quesada, Varona, and the
other Cubans who took passage upon the Virginius, instead of going on

166

CHAP. XVI.] "VIRGINIUS" CASE. [§ 327.

board at the wharf in the usual way, went aboard off a tug after the
vessel had left the harbor of !New York. I cannot do otherwise than
to hold upon this evidence that Patterson's oath was false, and that the
register obtained in his name was a fraud upon the navigation laws of
the United States.

"Assuming the question to be what appears to conform to the intent
of the protocol, whether or not the Yirginius, at the time of her capture,
had a right, as against the United States, to carry the American flag,
I am of the opinion that she had no such right, because she had not
been registered according to law ; but I am also of tbe opinion that she
was as much exempt from interference on the high seas by another
power, on that ground, as though she had been lawftdly registered.
Spain, no doubt, has a right to capture a vessel, with an American reg-
ister, and carrying the American flag, found in her own waters assisting^
or endeavoring to assist, the insurrection in Cuba, but she has no right
to capture such a vessel on the high seas upon an apprehension that^
in violation of the neutrality or navigation laws of the United States,
she was on her way to assist said rebellion. Spain may defend her ter-
ritory and people from the hostile attacks of what is, or api)ears to be,
an American vessel; but she has no jurisdiction whatever over the
question as to whether or not such vessel is on the high seas in violation
of any law of the United States. Spain cannot rightfully raise that
question as to the Yirginius, but the United States may, and, as I under-
stand the protocol, they have agreed to do it, and, governed by that
agreement and witiiout admitting that Spain would otherwise have any
interest in the question, I decide that the Yirginius, at the time of her
capture, was without right and improperly carrying the American flag.''

Mr. WUliams, Att'y Gen., to Mr. Fish, Dec. 17, 1873. 14 Op., 340; For. Bel.^
1874. See as to flag without papers, infiraf $$ 408 jf.

**Beferring to the protocol signed on the 29th day of November, and
to the agreement signed on the 8th day of December, instant, between
tbe Spanish minister and myself, of which copies were furnished to
yon with my letter of 8th instant, I have the honor to call your atten-
tion to the provision in these two papers relative to a salute to the flag
of the United States, to be made by Spain, in the harbor of Santiago
de Cuba, on the 25th day of December, instant, and to the agreement
in the protocol that 4f, before that date, Spain should prove to the sat-
isfaction of the Government of the United States that the Yirginius
was not entitled to carry the flag of the United States, and was carry-
ing it at the time of her capture without right and improperly, the
salute will be 8iK)ntaneously dispensed with, as in such case not being
necessarily requirable.'

*^The Spanish minister, in behalf of his Government, has submitted
certain documents, including depositions taken before a United States
commissioner, in the presence of the attorney of the United States for

167

§ 327.] VISIT AND 8EAECH. . [CHAP. XVI.

the southern district of N'ew York, by whom the parties making the
depositions were cross-examined.

<^ These depositions, together with copies of the register, and other
papers of the Virginias, were, by direction of the President, submitted
to the Attorney-General, requesting his opinion upon the force of the
evidence, whether it does substantiate to the reasonable satisfaction of
this Government that the Virginius was not entitled to carry the flag
of the United States, and was carrying it, at the time of her capture,
without right and improperly.

"The Attorney-General holds, upon the evidence presented, that the
register of the Virginius was a fraud upon the navigation laws of the
United States, and is of the opinion that she had no right to carry
the flag of the United States, and he ^decides that the Virginias, at
the time of her capture, was without right, and improperly, carrying
the American flag.'

"By direction of the President, I have the honor to inclose herewith
a copy of this opinion and decision of the Attorney-General.

"The President directs me further to say that the conditions having
thus been reached, on which, according to the protocol of the 29th of
November last, the salute to the flag of the United States is to be spon-
taneously dispensed with, he desires that you will give the necessary
orders aud instruct the proper officers to notify the authorities of San-
tiago de Cuba of that fact, in time to carry out the intent and spirit of
the agreement between the two Governments."

Mr. Fish, See. of State, to Mr. Robespn, Sec. of the Navy, Nov. 17, 1873. MSS.
Dom. Let. ; ibid,

" Spain having admitted (as could not be seriously questioned) that
a regularly documented vessel of the United States is subject on the
high seas in time of peace only to the police jurisdiction of the power
from which it receives its papers, it seemed to the President that the
United States should not refuse to concede to her the right to adduce
proof to show that the Virginius was not rightfully carrying our flag.
When the question of national honor was adjusted, it also seemed that
there was a peculiar propriety in our consenting to an arbitration on a
question of pecuniary damages."

Mr. Fitth, Sec. of State, to Mr. Adee, Deo. 31, 1873. MSS. Inst., Spain.

"In March last an arrangement was made, through Mr. Oushij^g, our
minister in Madrid, with the Spanish Government, for the payment by
the latter to the United States of the sum of eighty thousand dollars in
coin, for tMe purpose of the relief of the families or persons of the ship^s
company and certain passengers of the Virginius. This sum was to
have been paid in three installments at two months each. It is due to
the Spanish Government that I should state that the payments were
fully and spontaneously anticipated by that Government, and that the
whole amount was paid within but a few days more than two months

168

CHAP. XVI.3 NO LON6EH PERMITTED IN PEACE. [§ 327.

from the date of the agreement, a copy of which is herewith transmitted.
In parsnance of the terms of the adjustment I have directed the dis-
tribution of the amount among the parties entitled thereto, including
the ship's company and such of the passengers as were American citi-
sens. Payments are made accordingly, on the application by the parties
entitled thereto.''

President Grant, SeTenth Annual Message, 1875.
The foUowing docnmenta may be refeired to In this connection :

Steamer Virgin ins. Correspondence as to, House Ex. Doc. 30, 43d Cong., Ist

Trial of General Juan Burriel for the massacre of the passengers and crew ut

the. Correspondence. President's message, Jan. 21, 1876, House Ex. Doc.

90, 44th Cong., lat sess.
Indemnity. Amount received and distributed. President's message, Nov.

15, 1877, House Ex. Doc. 15, 45th Cong., 1st sess.
Further correspondence. President's message, Har. 29, 1878, House Ex. Doo.

72, 4oth Cong., 2d sess.

The protocol of conference with Spain relative to the captured steamer
Virginins, wUl be found in Brit, and For. St. Pap., 1872-73, vol. 63.
For the agreement as to indemnity, see Brit, and For. St. Pap., 1874-75,
Tol. 66. As to ships without registry, see in/ra, §§ 408 Jf.

'^Ihave to instruct you to bring to the earnest attention of His Maj-
esty's Government a series of occurrences on the high seas and in
waters c^jacent to the eastern part of the Island of Cuba of such excep-
tional gravity that this Government cannot but attach the utmost im-
portance thereto, inasmuch as the facts which have been brought to
the attention of this Department, if substantiated, involve not only
unwarrantable interference with the legitimate pursuit of peaceful com-
merce by American citizens, but ^\so a grave affront to the honor and
dignity of their flag.

"Four separate instances of the visitation and search of American
commercial vessels by armed cruisers of Spain have been reported in
rapid succession, under circumstances which impress the mind of the
President with the substantial truthfulness of the statements, made
under circumstances which preclude collusion or willful deception on
the part of those making them.

^<The facts of these occurrences, in the order in which they took
place, as sworn to by the officers of the several vessels, are as follows :

^< 1st. The schooner Ethel A. Merritt, one of the fleet belonging to the
firm of Warner & Merritt, fruiterers, of Philadelphia, sailed from Port
Antonio, Jamaica, on the 29th May last, laden with fruit for Philadel-
phia. On the next day, May 30, she was overhauled by a vessel-of-war
under the Spanish flag, which fired a blank shot, upon which the Ethel
A Merritt displayed the United States flag and kept on her course.
The cruiser then bore down upon her and fired a solid shot which
glanced and passed through her rigging. The master of the schooner,
to save the owners' property and the lives of his crew, then hove to and

159

§ 327.] * VISIT AND SEARCH. • [CHAP. XVL

his vessel was boarded by an armed officer, in Spanish nniform^ who
searched her, and finding nothing on board save legitimate cargo, per-
mitted her to proceed on her coarse. The affidavits of the master and
first mate of the schooner fixed her distance from the nearest point of
the Island of Cuba at the time she was boarded, as between six and
seven nautical miles. The name of the boarding cruiser was not ascer-
tained at the time, and through the mistaken impression of one of the
schooner's crew, who read the name on her stern indistinctly, she was
supposed to be called the Kuncio or Nunico.

" 2d. The schooner Eunice P. Newcomb, of Wellfleet, Mass., bound
from Port Antonio, Jamaica, to Boston, with a cargo of bananas and
cocoanuts, on or about the 18th of June last, was in like manner over-
hauled by a gunboat under the Spanish flag, which fired a blank shot
across her bow. The Eunice P. Newcomb showed the United States
flag and kept on her course, being then on the high seas, seven or eight
nautical miles distant from the coast of Ouba. The Spanish cruiser
next fired a solid shot across the schooner's stern, when the latter hove
to and was boarded by three men from the gunboat, who searched th<j
vessel and left her to proceed on her course. In this case, also, the
name of the boarding cruiser was not reported to the Department.

^' 3d. The schooner George Washington, of Booth Bay, Me., cleared
from Baltimore, Md., on the 22d of June last, in ballast, for Manchio-
neal, in Jamaica, for a cargo of fruit. On the 5th of July. wLen aboat
fifteen miles distant from Gape Maysi, on the eastern extremity of the
Island of Cuba, she sighted a steamer some ten miles distant. The
steamer altered her course and bore down upon the schooner, which
Loisted the United States flag. The steamer overtook the schooner^
Hot displaying the Spanish flag until abreast of her, steamed ahead witlk
guns manned, and lowered a boat which put off to the George Wash-
ington. The master of the latter hove to, and the boat, containing two
officers and two men, heavily armed, ran alongside. The Spanish ofil.-
cers and coxswain went on board, examined the schooner's papers
searched her hold and ship's stores, inspected all her crew, and left hei
without explanation. The search took place about fifteen miles soutb
easterly of Gape Maysi. The name of the vessel was in this instance,
also, not ascertained, but the concluding letters on her stern, all that
could be read as she lay, are said to have been ^' gary," which leads
the Department to conjecture that she may have been the Blasco da
Garay, the gunboat concerned the following day, in the same neighbor-
hood, in the fourth and last of the cases of visitation and search tbas
far reported to this Government.

"4th. The schooner Hattie Haskell, of New York, sailed from tha*
city on the 18th of June last, with a general cargo for the San Bias coas'C
in the Oolombian State of Panama. On the 6th of July she sighted tb^
east coast of Cuba, off Gape Maysi. At two o'clock that day she sighte^cS
a side- wheel steamer, which gave chase, and, when near, set the Spi

160

CHAP. XVI.] NO LONGER PERMITTED IN PEACE. [§ 327.

ish flag, wliereat the Hattie Haskell showed the Americau colors. At

MX o'clock the ganboat, which proved to be the Blasco de Garay,

ordered the Bchooner to heave to, and when a cable's length distant^

Bent a boat off to her with aa armed crew, her guns being meanwhile

manned and crew mastered for action. The boat carried two officers,

wbo examined the schoonei*'s papers and searched her hold, after which

she was permitted to proceed. This visit ^nd search occurred about 32

miles sonthwesterly from Cape Maysi, as verified by the affidavits of the

master, mate, and all the crew of the flattie Haskell before the United

States court at Aspinwall.

"As may naturally be supposed, these occurrences gave this Govern-
ment much concern, and immediate steps were taken to ascertain the
tnith of the facts stated. The prompt denial of the possibility of such
an event taking place, which was spontaneously made public through
the press of the Cuban authorities, coupled with the circumstances of
DO vessel bearing a name even remotely like that of Nuncio or Nunico
being in the Spanish service, gave rise at first to the conjecture that
the search of the Ethel A. Merritt might have been the work of some
piiatical craft;, and the Tennessee, a war vessel of the United States,
was prom ptl3^ dispay^hed to Cuban waters to make an investigation.

*^Yonr own dispatch of the 16th of June (No. 33) shows how quick
the Spanish ministry was to disavow the act, then only known to it
through the press; and how earnest was the assurance given that if the
firing had taken place as reported, it was done contrary to the express
onlers and wish of the Spanish Government. It was, however, soon
learned by the rear-admiral commanding the Tennessee that the firing
upon, boarding, and search of the Ethel A. Merritt and Eunice P. New-
oomb was admitted by the Spanish anthoriries at Santiago de Cuba,
the explanation given by them being that the guarda castas are not per-
nutted to cruise at a greater distance than six miles from the Cuban
shore; that the schooners when boarded by officers of the gunboat
Oanto were at a distance not greater than from two to three miles from
the south coast of Cuba, and that the occurrences were immediately re-
ported through the captain of the port of Santiago de Cuba to the Span-
ish admiral at Havana.

**The reported visitation and search of the George Washington and
H&ttie Haskill has not as yet been in like manner admitted, but from
the verification of the incidents with respect to the two previous
s^whes, there can be little doubt that the occurrences in their cases
^ be likewise found to be true, and that the war vessels of Spain ofif
the coast of Cuba have in at least four instances in rapid succession
exercised the right of visitation and search upon vessels of the United
States flying the American flag, and passing in the pursuit of lawful
trade through the commercial highway of nations which lies to the east-
»awl of the Island of Cuba. This Government does, not lose sight of
the trparte declarations made by the Spanish local authorities at San-

S. Mis. 1C2— VOL. m 11 1^1

& 327.] VISIT AND SEARCH. ' [CHAP. XVL

tlago de Cuba, that the two a^ts thus far verified took place within the
three-mile limit. This point is in dispute, and evidence as trustworthy
a« proof can well be in such cases is adduced to show that the vessels
were at the time from six to eight miles distant from the shore. In the
cases of the two remaining searches the evidence fixes the distance
from shore far outside of the limits mentioned, and in thatof.theHattie
Haskell, especially, at over twenty miles from the Cuban coast.

'' The question does not appear to this Government to be one to be
decided alone by the geographical position of the vessels, but by the
higher considerations involved in this unwonted exercise of a right of
search in time of peace, and to a gfreater extent than the existing treaty
of 1795, between the two nations, in its eighteenth article, permits it to
be exercised even in time of recognized public war, that article permit-
ting visitation only, with inspection of the vessel's sea-letters, and not
search. These interferences with our legitimate commerce do not even
take the form of a revenue formality performed by the revenue vessels of
Spain, but carry in their methods most unequivocal features of bellig-
erent searches made by the war vessels of Spain. From the unhappy
history of the events of the past ten years in and about the watera of
the Antilles, it is only too oogently to be inferred that these proceed-
ings of Spanish war vessels assume a right thus tS arrest our peaceful
commerce under motives not of revenue inspection, but of warlike de-
fense. In this aspect of the case it may well be doubted whether, under
color 'of revenue investigation to intercept smuggling or other frauds,
jurisdictional power within the limit of the recognized maritime league
could be invoked in time of peace to justify the interference of Spanish
cruisers with the lawful commerce of nations passing along a public
maritime highway, in a regular course of navigation which brings them
near the Cuban coast, though not bound to its ports. It is not to be
supposed that the world's commerce is to be impeded, and the ships of
foreign and friendly nations forced to seek an unwonted channel of
navigation ; that they are to be driven out of their proper course into
adverse winds and currents to avoid the ofifensive exercise of a right
which is allowed only to the exigencies of a state of war, and to avert
the imminent risk of armed attack and of discourtesy to the flag they
bear. And it needs no argument to show that the exercise of any such
asserted right upon commercial vessels, on the high seas, in time of
peace, is inconsistent with the maintenance \)f even the most ordinary
semblance of friendly relations between the nation which thus conducts
itself and that whose merchant vessels are exposed to systematic de-
tention and search by armed force.

'' I have made use of the terras 'systematic detention and search ' ad-
visedly, for althou^^h I am loath to believe that the Government of His
Miijesty has determined upou the adoption of a course towards the ves-
sels of the United States, in or near the jurisdictional waters of Spain,
winch can only imply a standing menace to the integrity and honor of

162

CHAP. XVI,] KO LONGER PERMITTED IS PEACE. [§ 327,

my coQDtry aud its flag, yet the occairence ia quick sacccssion of fonr
such grave acta of offeuBtve search of onr peaceful traders, after ao long
an interval of repose since tbia question was last raised in the case of
the American whalers on the southern coast of Cuba, cannot but make
me apprehensive that the Government of Spain, or the snperior author-
ity of Cuba, in pursnance of the disorettonary power it is understood to
possess, may have taken up a new line of action, aud one wholly incon-
sistent with those relations between the two couatries which both their
reciprocal ioterests and duties require should be maiataiued tiobroken.

"It is my profonud hope that snch apprehensions on my part may
be found to be baseless. But in view of the length of time which has
«lapsed since the first of these occurrences wan known to the public here
and in Spain, of the anxiety which the minister of state expressed to
you in the matter of the telegraphic inquiries made by him of the Cuban
snthorities, and of the immediate report of the early cases to the admiral
at Havana, which Is said to have been made, I caunot bat express mj
surprise and regret that the Spanish Goveniment should not of itself
have hastened to make some explanation of the incidents calculated to
allay the anxiety of a friendly power, whose just susceptibilities as re-
spects the safety of its commerce and the houor of its dag are so well
known to the Spanish Government.

"I do not undertake, now, either a full exposition of the doctrine of
this Governmeut on the subject of the maritime jurisdiction of stiites
over circumjacent waters, or a particular inquiry as to the diverse
views, in some sense, which have been brought forward, heretofore, in
the diKCussion between Spain and tbe CTnited States on the subject of
jurisdiction over Cuban waters.

" I desire, however, that the position heretofore more than ouce dis-
tinctly taken by this Oovemmeot, in its diplomatic correspondence
with Spain, shall be understood by yon aud firmly adhered to in any
iutercoarse you may have in tbe pending situatiou with the Spanish
minister of foreign affairs. This Government never has recognized and
never will recognize any pretense or exercise of sovereignty on the
part of Spain beyond the belt of a league from tbe Cuban coast over
the commerce of this country in time of peace. This rule of the law of
nations we consider too firmly established to be drawn into debate, and
any dominion over tbe sea outside of this limit will be resisted with the
same firmness as if such dominion were asserted in mid-ocean.

"Tbe revenue regulations of a country framed and adopted under
the motive antl to tbe end of protecting trade with its ports against
BunggliDg and other frauds which operate upon vessels bound to such
ports have, without due consideration, been allowed to pliiy a piirt in
the discussions tielween Spaiu and the United States on the extent of
milritime dominion accorded by the law of nations which does not be-
long to them. lu this light are to be regarded the royal decrees which
it has been claimed by the Spanish Govemment had for more than a

103

§ 327.] VISIT AND SEARCH. [CHAP. XVL

hnndred years established two leagaes as the measure of maritime-
jarisdiction asserted and exercised by the Spanish Grown both in pen-
insular and colonial waters. Of this character, obviously, are the re-
gulations of our revenue system in force since 1799, which not only
allow but enjoin visitation of vessels bound to our ports within four
leagues from land, which, in her diplomatic correspondence with this-
Government, Spain has much insisted on as equivalent to its own do-
minion as asserted off its coasts, except that our authority was exerted*
at twice the distance from land.

" But the distinction between dominion over the sea, carrying a right
of visit and search of all vessels found within such dominion, and fisca?
or revenue regulations of commerce, vessels, and cargoes engaged in^
trade as allowed with our ports to a reasonable range of approach to-
such ports, needs only to be pointed out to be fully appreciated. Every
nation has full jurisdiction of commerce with itself, until by treaty
stipulations it has parted with some portion of this full control. In*
this jurisdiction is easily included a requirement that vessels seeking?
our ports, in trade, shall be subject to such visitation and inspectioii<
as the exigencies of our revenue may demand, in the judgment of thi»
Government, for the protection of the revenues and the adequate ad-
ministration of the customs service. This is not dominion over the se»
where these vessels are visited, but dominion over this commerce with
us, its vehicles and cargoes, even while at sea. It carries no assertioup
of dominion, territorial and in invitttui, but over voluntary trade in prog-
ress and by its own election, submissive to our regulations of it, even
in its approaches to our coasts and while still outside of our territorial!
dominion. (This statutory provision is the subject of discussion in in<>
structions of Mr. Fish and Mr. Evarts, given supray § 32.)

'* You will observe, therefore, that the American vessels which have*
been interfered with thus unwarrantably were not engaged in trade-
with Cuba, and were in no degree subject to any surveillance or visita-
tion of revenue regulation. The acts complained of, if, indeed, as our
proofs seem to make clear, without the league accorded as territoriaP
by the law of nations, have no support whatever from the principle of
commercial regulation which I have explained. Spain had no jurisdic-
tion over the waters in which our vessels were found; no jurisdiction^
over the trade in which they were engaged ; and no warrant under the
law of nations, to which alone these vessels in this commerce were sub-
ject, can be found for their arrest by the Spanish gunboats.

'<As the offense against the rights of our commerce and the freedom^
our flag, which we complain of in those four instances, is substantive, it
is not necessary for me now to insist upon the form and manner of
these visitations and searches as elements or aggravations of this offense.
It cannot, however, escape notice that each transaction has unequivocal^

104

•CH^P. XVI.] KO LONGER PERMITTED IN PEACE. [§ 327.

features of the exercise of direct sovereignty, and by mere force, as if
'by territorial and armed dominion over the sea which was the scene of
the transactions. These were ganboats, a part of the naval power of
Spain, under the threat of their armaments and by the presence of ade-
^aate armed force boarding these vessels, compelling sabmission; their
action was neither more nor less than such as it would have been nnder
a belligerent right on the high seas in time of war.

'* In manner and form, then, as well as in substance, the power to
vhich our commerce was obliged to succumb was not. of commercial
fegulation or revenue inspection, or by any of the instruments employed
in preventive or protective service with which commerce is familiar.

^' Unless some face ^hall be put upon these disturbances of our peace-
ful and honest commerce in one of the most important thoroughfares
which I cannot anticipate, this Government will look to Spain for a
prompt and ready apology for their occurrence, a distinct assurance
-against their repetition, and such an indemnity to the owners of those
several vessels as will satisfy them for the past and guarantee our com-
meroe against renewed interruption by engaging the interest of Spain
in restraint of rash or ignorant infractions, by subordinate agents of its
power, of our rights upon the seas."

Mr. ETarts, Sec. of State, to Mr. Faircbild, Ang. 11, 1880. MSS. lust., Spain,
For. Eel,, 1880.

The right of search cannot be exercised in time of peace ; nor is it any
excuse that the search was attempted in the port of a third sovereign
who makes no complaint of the outrage.

Mr. Evarts, Sec. of State, to Mr. Asta-Burnagna, Mar. 3, 1881. MSS. Notes,
Chili.

*< By the law of nations, as it is understood in this Department, the
citizens or subjects of a particular country who are owners of a ship,
are entitled to carry on such ship, when at sea, the flag of such coun-
try ; and such flag is to be regarded by all foreign sovereigns as the
badge of nationality. It is true that municipal laws exist in the United
States, as in other countries, by which, for municipal purposes this rule
of the law of nations is subjected to certain limitations. But it is also
true that these limitations have no extraterritorial force, and that it is
not within the provision of foreign sovereigns to enforce them. When-
ever a wrong is done, or supposed to be done, by a foreign sovereign
to a vessel owned by citizens of the United States, then the Govern-
ment of the United States on being duly advised will inquire into the
wrong.

<^ Until, however, such a question actually arises, it is not in accord-
ance with the practice of this Department to declare how the law thus
stated would be applied in such contingencies as are suggested in your
communication acknowledged as above. The question, in fact, of the
tight of the local authorities at any particular British port to impose

165

§ 327.] VISIT AND SEARCH. [CHAP. XVL.

the tests to which you refer, coald only come before this Department
on the application of ship-owners claiming to be thereby aggrieved ^
and antil they present their case, and are heard on their own behalf,,
you will no donbt agree with me that it would be unsuitable for thi»
Department to express in advance any opinion by which their case-
might be prejudiced.'*

Mr. Bayard, Sec. of State, to Sir L. West, Apr. 9, 1886. MSS. Notes, Gr. Brit.

*< Mr. Machado's claim, as will be seen from this review, has two dis-
tinct relations. The first is for the affront to the flag of the United^
States which his two vessels bore. No foreign sovereign had then the
right in time of peace to visit and search a vessel bearing that flag, un-
less in the single instance of piracy shown beyond reasonable doubt. A t
the very time Mr. Machado's vessels wei*e thus arrested. Great Britain-
had been urging on us to give her this privilege in respect to American*
ships supposed to be slavers; but thid proposition was peremptorily re-
pelled. This very fact made the arrest in these particular cases an out-
rage which this Government was bound to resent. It is true that in
1862, under peculiar circumstances, a treaty with Great Britain grant-
ing this right on the basis of reciprocity was duly ratified and pro-
claimed ; but this treaty has, in consequence of the cessation of the
slave trade, practically ceased to operate ; and visitation and search, in
time of peace, of American vessels by British cruisers, except on the
ground of piracy, was in 1854 and 1857, and still is, regarded by us as
an offense requiiing apology and indemnity. It is due to the British
Government to say that, when called upon for an explanation, it ex-
pressed its regrets at the occurrences in question, tendered an apology^
punished the offending officer, and agreed to pay such compensation to^
Mr. Machado as would, under the circumstances, be suitable. That Gov-
ernment then offered to arbitrate, as has been seen, in case of inability
to agree upon the amount of damages."

Mr. Bayard, Sec. of State, to Messrs. SawyerandSpooner, Apr. 19, 16S6. M88»
Dom. Let.

<^ What is this right of search t Is it a substantive and independent
right wantonly, and in the pride of power, to vex and harass neutral
commerce, because there is a capacity to do so; or to indulge the idle
and mischievous curiosity of looking into neutral trade ; or the assump-
tion of a right to control it t If it be such a substantive and independ-
ent right, it would be better that cargoes should be inspected in port
before the sailing of the vessel, or that belligerent licenses shonld be
procured. But this is not its character." The right of search " has been
truly denominated a right growing out of and ancillary to the greater
right of capture. Where this greater right may be legally exercised
without search, the right of search can never rise or come into ques^
tion.»

Marshall, C. J. Tbe Nereide, 9 Craiich, 406.
16G

§ 327.] VISIT AND SEARCH. [CHAP. XVI

nally conceded the right of search . In the treaties made with other pow-
ers there were limits as to the time when and where the visitation for the
examination of the papers may be made ; and the right of detention is
confined to certain cruisers specially anthorized. In our case, if admit-
ted at all, it would be equally competent for any ship-of-war, and if
English ships have the right, all others possess it, to visit and detain
any merchantman at any time and in any part of the ocean." (Visit
and Search, 41. See Schuyler's Am. Diplom., 251, citing to same effect
President Tyler's message of Dec. 8, 1841.) The same position is taken
by Mr. Webster in his instructions to Mr. Everett of March 28, 1843.

As to the treaty of 1842, see farther aiipr a, $ 1500 ; 2 Halleck's Int. Law (Baker's
cd.), 27?!

Although Mr. Webster, as has been seen, followed up the Ashbnrton
treaty of 1842 witli a vigorous declaration of the determination of the
Government of the United States to admit no right of visitation in times
of peace, the British ministry seemed to hold that the opposition of the
United States to such visitation was relaxed. It may have been on
this assumption that early in 1868 a number of small vessels-of-war were
sent into Cuban waters with instructions to search for slavers. This
mission was exercised with so little delicacy and reserve, in respect to
vessels of the United States sailing in those waters, that President
Buchanan not only addressed a grave protest to the British Govern-
ment, but sent a naval force to the Cuban waters to '^ protect all ves-
sels of the United States on the high seas from search or detention by
the vessels of- war of any other nation." The Senate unanimously ap-
proved of these instructions (Cong. Globe, 1858-'59, p. 3081, cited in 2
Curtis's Buchanan, 214), and the offensive orders were withdrawn by the
British Government.

Mr. I>aUa« having, on July 4, 1858, at a dinner of Americans in Lon-
don, said : <' Visit and search in regard to American vessels on the high .
seas in time of peace is finally ended," Lord Lyndhurst, on July 26^
in the House of Lords, said in reference to this remark : '^ We have sur-
rendered no right at all, for no such right as that contended for ever
existed. We have abandoned the assumption of right, and in so doing
we have acted justly, prudently, .and wisely. I think it is of great im-
portance that this question should be distinctly and finally understood
and settled. By no writer on international law has this right ever been
asserted. There is no decision of any court of justice having jurisdic-
tion to decide such questions in which that right has ever been admit-
ted."

On April 7, 1862, Mr. Seward, in view of the exigencies of the civil
war then pending, agreed to a proposal of the British Government ex-
tending the right of visitation in such cases as a means of putting down
the slave trade, and a treaty to this effect (unfortunately without duly
restricting the right of visitation in such cases) was agreed to and ra^
ifled by the Senate of the United States. (See review of Mr. Seward's
action in this relation in a pamphlet by the late Mr. William B. Reed).
The treaty provided for mixed courts for the determination of seizures
of this class. The slave trade having virtually ceased, so far as con-
cerns this country, on the abolition of slavery, the mixed courts never
went into opcBatibn. By a supplementary treaty in 1870, the duties
assigned to these courts were given to the admiralty courts of the two
countries respectively. (See Schuyler's Am. Diplom., 263, 264). The

168

•CHAP. XVL] no longer PERMITTED IN PEACE. [§ 327*

4ictioD of oiir Government giving the rigjit of search in this particular
line of cases excludes it &om other cases on the principle expressio
tinm est txcluHo alterius.

It is a serious objection to the treaty that it extends this right of
search to our own coast, the Keys of Florida being within thirty leagues
from Point Yeacos or Mantanzas. It appears from a letter of Mr. Perry,
minister at Madrid (U. S. Dip. Gorr., 1862, 509), that the Spanish min-
ister expressed surprise that the United States <^ after combating the
principle so long,". <^ should have yielded now a right so exceedingly
liable to be abnsed in practice"; and this surprise may still be ex-
pressed elsewhere than in Spain.

^^Two essays, <An inquiry into the validity of the British claim to a
right of visitation and search of American vessels suspected to be en-
jfa^d in the African slave trade,' by Mr. Wheaton, London, 1842; and
^Examen de la Question anjonrd'hui pendante entre le Oouvernement
^es £tats Cnis et celni de la Grande Bretagne, concemant le droit de
Visite' (ascribed to Hon. Lewis Gass, then minister to France), Paris,
1842, with the letter of General Cass to M. Guizot, dated 13th Febru-
ary, 1842; and which was in the nature of a protest against the quintu-
ple treaty of 20th December, 1841, are understood to have had no little
influence in preventing the ratification of that treaty by the Govern-
ffleiit of France.

^^The publications referred to received, as it were, an ofQcial sanction
from Mr. Legar6, on his assuming the seals of the State Department,
lo bis earliest instructions he said : ' I avail myself of the first oppor-
tunity afforded by our new official relations, to express to you my
bearty satisfaction at the part you took, with General Cass, in the dis-
CQSsion of the ^' right of search," and the manner you acquitted yourself
of it. I read your pamphlet with entire assent. It is due to the civili-
zation of the age, and the power of opinion, even over the most arbi-
trary Goverumeuts, that every encroachment on the rights of nations
should become the subject of immediate censure and denunciation.
One great object of permanent missions is to establish a censorship of
this kind, and to render by means of it the appeals of the injured to
the sympathies of mankind, through diplomatic organs, at once more
easy, more direct, and more effective.' (Mr. Legar^ to Mr. Wheaton,
June 9, 1843. State Department MSS.) "

Lawrence's Wheaton (ed. 1863), 262,263.

It is said that this prerogative is essential to clear the seas of pi-
rates. But the prerogative is an impertinent intrusion on the privacy
of individuals as well as on the territory of the state whose domains are
thus invaded ; and the evil of sustaining such a prerogative is far
greater than the evil of permitting a pirate for a few hours to carry a
simulated flag. Pirates, in the present condition of the seas, have been
very rarely arrested when setting up this simulation. They are now,
in the few cases in which they appear, readily tracked by other means;
and the fact that in some instances they are caught when carrying a
false flag no more sustains the right of general search of merchant ship-
ping thdn would the fact that consi)irators sometimes carry false papers
justify the police in seizing every business man whom they meet and
searching his correspondence. In the very rare cases in which an ap-
parent pirate is seizi>d and searched on the' high seas under a mistakCi

169

^ 327.] VISIT AND SEARCH. [CHAP. X\

tlie vessel being a merchant slfip, the defense most be, not prerogativ
bat necessity, only to be justified on the grounds on which is jastifii
an assaalt made on apparent bnt unreal cause. (See to this effe
Oessner, 12th ed., 303 ; Kaltenbom, Seerecht, ii, 350 ; Wheat., Right
Yisitatiofl, London^ 1842. See to the coutraiy Phill., iii, 147, 141
Heffter, 164; Calvo, ii, 656. Ortolan holds that the function is to 1
exercised at the risk of the visiting cruiser as an extra-legal prerogativ
Ortolan, iii, 258.)

It may be added that basing the right to search a vessel 'on the a
sumption of piracy is ekpetitio principii^ equivalent to saying that tl
vessel is to be searched because she is a pirate, when it is for the pu
pose of determining whether she is a pirate that she is searched. Tl
searching, as is the case on issuing a search warrant in our ordinal
criminal practice, should be at the risk of the party searching, and on
on probable cause first shown, not for the purpose of inquiring wheth<
there is probable cause. The right of British cruisers to search a fa
eign vessel for British sailors was claimed by the British Governme
prior to the war of 1812 between Great Britain and the United Stat«
The right was not abandoned by Great Britain at Ghent, but it li
neversince been exercised. It is now virtually surrendered. (1 Whe;
Int. Law, 737.) '^ I cannot think,'' says Sir R. Phillimore (3 Phill., 1&'
445), " that the claim of Great Britain was founded on internatiar
law. In my opinion it was not." The right to visit and search on c<
tain conditions has frequently, it should be added, been given by treat
in which ca«e it is determined by the limitations imposed by Ihe co
tracting states. (See specifications in Gessner, 12th ed., 305.) At tl
same time we must remember that independent of the right of search,
ship, whether public or private, has a right to approach another on tl
high seas, if it can, and to hail or speak it, and require it to show ii
colors, the approaching ship first showing its own. (Ortolan, li6g. In
et Dip. de la Mer, 233, &c.; Field's Int. Code, § 62.)

^'The views of Mr. Webster on this question are fully sustained- 1)
the best writers on public law in America and Europe. Chancellc
Kent says most emphatically that the right of visitation and searc
* is strictly and exclusively a war right, and does not rightfully exist i
time of peace, unless conceded by treaty.' He, however, concedes th
right of approach (as described by the Supreme Court of the Unites
States in the Marianna Flora) for the sole purpose of ascertaining tb<
real national character of the vessel sailing under suspicious circain
stances. With respect to the right of visit in time ofpeace^ claimed b;
the English Government, Mr. Wheaton defied the British admiralty
lawyers ' to show a single passage of any institutional writer on publi'
law, or the judgment of any court by which that law is administered
either in Europe or America, which will justify the exercise of such :
right on the high seas in time of peace.' • • '• * The distinction uo^
set up, between a right of visitation and a right of search, is nowhere »
luded to by any public jurist as being founded on the law of uationt
The technical term of visitation and search, used by the English civilian^
is exactly synonymous with the droit de visite of the continental civilian^
The right of seizure for a breach of the revenue laws, or laws pf trad
and navigation, of a particular nation, is quite diflferent. The ntmos
length to which the exercise of this right on the high seas has ever bee
carried, in respect to the vessels of another nation, has been to justif;
seizing them within the territorial jurisdiction of the state agains

170

CHAP. XVI.] NO LONGER PERMITTED IN PEACE. [§327,

whose laws they offend, and pursuing them in case of flight, seizing
them upon the ocean, aud bringing them in for adjudication before the
tribanals of that State. This, however, sa^^s the Supreme Court of th&
United States in the case of the Marianua Flora, ' has never been
8appo8ed to draw after it any right of visitation and search. The party,
in 8aeh ease, seizes at his peril. If he establishes the forfeiture he i»
justified.' Mr. Justice Story, delivering the opinion of the Supreme
Court in the case of the Marianna Flora, says that the right of visita-
tJon and search does not belong, in time of peace, to the public ships of
any nation. * This right is strictly a belligerent right, allowed by the
general consentof nations in time of war, and limited to those occasions.^
^Upon the ocean, then, in time of peace, all possess an entire equality.
It is the common highway of all, appropriated to the use of all, and
00 one can vindicate to himself a superior exclusive prerogative there.
Every ship sails there with the unqnestionable right of pursuing her
own lawful business without interruption.' ^

2HalIeck'8 Int. Law (Baker's ed.), 270.271.

In 2 Halleck's Int. Law (Baker's ed.), 273, 274, it is shown thac
Sir R. Phillimore's assertion that '*the right of visit in time of peace,.
for the purpose of ascertaining the nationality of a vessel^ is a part, in-
deed, bat a very small part, of the belli;2:erent right of visit and search,''^
is founded on a misconception of the words of Bynkershoek and
Kent, to which it appeals. See also Edinburgh Rev. for Oct., 1807,
vol.xi,U.

"When Mr. Wilberforce, in 1818, suggested such a concession of the
rigbt of search for slavers to Mr. J. Q. Adams, the answer was : 'My
conntrymen will never assent to such an arrangement.' A convention
tothis effect, signed by Mr. Bush and Sir Stratford Can ning, was amended
by the United States Senate so as to be inapplicable to the American
<^t8, and was then rejected by England. General Jackson, in 1834,.
throQgh the then Secretary of State, informed Sir Charles Vaughan, the
English minister, that ' the United States were resolved never to be a
P*rty to any convention on this subject.' Mr. Webster, in a dispatch ta
^oeral Cass, declared, in terms the most solemn, that our Government
^oaldnot ' concur in measures which, for whatever benevolent purposes
8iey may be adopted, or with whatever care or moderation they may be
exercised, have a tendency to place the police of the seas in the handa
^f a single power.' (See Lawrence's Bight of Visitation and Search,
^117; Diplomatic Hist of the War, 1884, 13, 52, 419.) And Mr.
^^ster, when Secretary of State in 1851, said : ^ I cannot bring myself
to believe that those Governments (England and France), or either of
tl^eni, would dare to search an American merchantman on the high seas
^ascertain whether individuals may be on board bound to Cuba, and
^Jth hostile purposes.' (Priv. Corr., 477.)"

Wbart. Com. Am. Law, $ 194.

Fora discnssion of the negotiations between Great Britain and the United Statea

in relation to the slave trade and the right of visit, see 1 PhiU. Int. Law (3d,

ed.), 414 ; 3 ihid., 525, 542.
As to the mode of summoning a neutral to undergo visitation, see the case of

the Marianna Flora, 11 Wheat., 1; discussed in 3 Pbill. Int. Law ( 3d ed.)

538.

171

§ 328.] VISIT, SEARCH, AND CAPTURE. [CHAP. XVL

IV. ACTIOK OF PRIZE COURT MAT BE ESSENTIAL.

§328.

^< By the well-settled principles of natioDal law it is made the daty of
the captor to place an adequate force on board of the captured vessel,
and if from mistaken reliance apon the safficiency of that force, or from
misplaced confidence, he fails in that object, the omission is considered
to be at his own peril. • • •

<' It appears to be equally well settled that capture alone does not
transfer any right of property in the vessel or cargo to the captors, the
title remaining unchanged until a regular sentence of condemnation has
been pronounced by some court of competent jurisdiction. • • •

^' The points involved, when considered with reference to the powers
and functions of the different branches of this Government, are, besides,
within the cognizance of the judicial department; and tribunals are in-
stituted in which they may be fairly investigated. To these tribunals
«yclusively belongs the right of deciding between different claimants
who may choose to litigate their rights before them. The Executive
may, it is true, order property to be restored to the rightful undiaputed
owner, in cases where the United States alone have, under their revenue
laws, put in a claim for forfeiture ; but it is not held to be within his
>eoDstitutional power to take from the possession of an individual, prop-
-erty of which he was once admitted to be the rightful owner, to which
he still lays claim, and his title to which has not been divested by the
judgment of a court."

Mr. Vail, Acting Sec. of State, to Mr. Poutois, Oct. 19, 1838. MSS. Notee,
France.

'^Mter a Mexican privateer has captured an American vessel, the
property cannot be transferred until after it shall have been condemned
by a court of admiralty ; and the question of prize or no prize belongs
exclusively to the courts of the captor. These principles of public law are
incontestable. At the time the Mexican Oovernment issued these com-
missions, they knew perfectly well that the prizes of their privateers
<K)uld not be brought within Mexican ports for condemnation. Aware
of thisi impossibility, they have attempted to overcome it in their prize
regulations, by conferring on their consuls in foreign ports, the power,
in effect of condemning prizes taken by their privateers. But no prin]
^ciple of public law is settled on surer foundations than that ^neutra*
ports are not intended to be auxiliary to the operations of the parties
^t war ; and the law of nations has very wisely ordained that a prize
court of a b.^lligerent captor cannot exercise jurisdiction in a neutral
•country. All such assumed authorities are unlawful, and their acts are
void.' I quote from the language of Chancellor (then Chief-Justice)
Kent, in delivering the opinion of the court in the case of Wheelwright
r. Depeyster, 1 Johnston's Rep., 481 ; and the authorities cited by

172

CHAP. XVI.] ACTION OP PRIZE COUBT MAY BE ESSENTIAL. [§ 328.

Mm folly jastify the decision. One of these is the case of Glass et al.
f. The Sl3op Betsey (3 Dallas, 6) ; in which the Supreme Court of the
United States sanctioned this principle so early as the year 1794."

Kr. Bnchanan, Sec. of State, to Mr. Saonders, Jane 13, 1847. MSS. Inst.^

Spain.
As to prize coarte in foreign lands, see supra, $$ 399, 400.

**ODly the fifth question remains, namely : Did Captain Wilkes exer-
cise the right of capturing the contraband in conformity with the law
of nations t

^*It is just here that the difficulties of the case begin. What is the-
manner which the law of nations prescribes for disposing of the con-
traband when you have found and seized it on board of the neutral
vessel t The answer would be easily found if the question were what
yon shall do with the contraband vessel. You must take or send her
into a convenient port, and subject her to a judicial prosecution there
in admiralty, which will try and decide the questions of belligerency,,
neutrality, contraband, and capture. So, again, you would promptly
find the same answer if the question were, What is the manner of pro-
ceeding prescribed by the law of nations in regard to the contraband,,
if it be property or things of material or pecuniary value t

**Bat the question here concerns the mode of procedure in regard not
to the vessel that was carrying the contraband, nor yet to contraband
things which worked the forfeiture of the vessel, but to contraband
persons.

^^The books of law are dumb. Yet the question is as important as it is-
difficnlt First, the belligerent captor has a right to prevent the contra-
band officer, soldier, sailor, minister, messenger, or courier from proceed-
^ginhis unlawful voyage, and reaching thedestined sceneof his injurious*
Krvice. But, on the other hand, the person captured may be innocent —
tttfttis, he may not be contraband. He, therefore, has a right to a fair-
^ of the accusation against him. The neutral state that has taken^
liim under its flag is bound to protect him if he is not contraband, and
^ therefore entitled to be satisfied ux>on that important question. The:
faith of that state is pledged to his safety, if innocent, as its justice is<
pl^ged to his surrender if heis really contraband. Here are conflict-
^g claims, involving personal liberty, life, honor, and duty. Here are
^oflicting national claims, involving welfare, safety, honor, and empire..
I^ey require a tribunal and a trial. The captors and the captured are-
^nals; the neutral and the belligerent state are equals.

"While the law authorities were found silent, it was suggested at au:
^riy day by this Government that you should take the captured per-
sons into a convenient port, and institute judicial proceedings there to
^ the controversy. But only courts of admiralty have jurisdiction in
inaritime case^, and these courts have formulas to try only claims to
^litraband chattels, but none to try claims concerning contraband per-

173

^ 328.] VISIT, SEARCH, AND CAPTURE. [cnAP. XVL

«ODS. The courts can entertain no proceedings and render no judgment
in favor of or against the alleged contraband men.

^^ It was replied all this was true ; but you can reach in those coarts
a decision which will have the moral weight of a judicial one by a cir-
cuitous proceeding. Convey the suspected men, together with the sus-
pected vessel, into port, and try there the question whether the vessel
is contraband. You can prove it to be so by proving the suspected men
to be contraband, and the court must then determine the vessel to be
•contraband. If the men are not contraband the vessel will escape con-
demnation. Still, there is no judgment for or against the captured per-
sons. But it was assumed that there would result from the determina-
tion of the court concerning the vessel a legal certainty concerning the
•character of the men.

''This course of proceeding seemed open to many objections. It ele-
vates the incidental inferior private interest into the proper place of
the main paramount public one, and possibly it may make the fortunes,
the safety, or the existence of a nation depend on the accidents of a
merely personal and pecuniary litigation. Moreover, when the judg-
ment of the prize court upon the lawfulness of the capture of the ves-
sel is rendered, it really concludes nothing, and binds neither the bel-
ligerent state nor the neutral upon the great question of the disposi-
tion to be made of the captured contraband persons. That question is
still to be really determined, if at all, by diplomatic arrangement or by
war.

''One may well express his surprise when told that the law of na-
tions has furnished no more reasonable, practical, and perfect mode
than this of determining questions of such grave import between sov-
ereign powers. The regret we may feel on the occasion is nevertheless
modified by the reflection that the difficulty is not altogether anomalous.
Similar and equal deficiencies are found in every system of municipal
law, especially in the system which exists in the greater portions of
Oreat Britain and the UnitM States. The title to personal property
can hardly ever be resolved by a court without resorting to the fiction
that the claimant has lost and the possessor has found it, and the title
to real estate is disputed by real litigants under the names of imaginary
persons. It must be confessed, however, that while all aggrieved na-
tions demand, and all impartial ones concede, the need of some form of
judicial process in determining the characters of contraband persons,
DO other form than the illogical and circuitous one thus described exists,
nor has any other yet been suggested. Practically, therefore, the choice
is between that judicial remedy or no judicial remedy whatever.

" If there be no judicial remedy, the result is that the question must
be determined by the captor himself, on the deck of the prize vessel.
Very grave objections arise against such a course. The captor is armed,
the neutral is unarmed. The captor is interested, prejudiced, and per-
haps violent; the neutral, if truly neutral, is disinterested, subdued,

174

CHAP. XVI.] ACTION OF PRIZE COURT MAY BE ESSENTIAL. [§ 328.

and helpless. The tribunal is irresponsible, while its judgment is car-
ried into instant execution. The captured party is compelled to sub-
mit, though bound by no legal, moral, or treaty obligation to acquiesce.
EeparatioD is distant and problematic, and depends at laRt on the jus-
tice, magnanimity, or weakness of the state in whose behalf and by
whose authority the capture was made. Out of these disputes reprisals
and wars necessarily arise, and these are so frequent and destructive that
it may well be doubted whether this form of remedy is not a greater so-
cial evil than all that could follow if the belligerent right of search were
Qoiversally renounced and abolished forever. But carry the case one
«tep farther. What if the state that has made the capture unreason-
ably refuse to hear the complaint of the neutral or to redress it f In
that case, the very act of capture would be an act of war— of war begun
without notice, and possibly entirely without provocation.

H think all unpr^udiced minds will agree that, imperfect as the ex-
istiDg judicial remedy may be supposed to be, it would be, as a general
practice, better to follow it than to adopt the summary one of leaving
the decision with the captor, and relying upon diplomatic debates to
re\iew his decision. Practically, it is a question of choice between law,
with its imperfections and delays, and war, with its evils and desola-
tions. Nor is it ever to be forgotten that neutrality, honestly and justly
preserved, is always the harbinger of peace, and therefore is the com-
moD interest of nations, which is only saying that it is the interest of
humanity itself.

^'At the same time it is not to be denied that it may sometimes hap-
pen that the judicial remedy will become impossible, as by the ship-
vieck of the prize vessel, or other circumstances which excuse the cap-
tw from sending or taking her into port for confiscation. In such a
<^ the right of the captor to the custody of the captured persons, and
to dispose of them, if they are really contraband, so as to defeat their
lawful purposes, cannot reasonably be denied. What rule shall be
applied in such a case f Clearly the captor ought to be required to
^ow that the failure of the judicial remedy results from circumstances
%ond Us control, and without his fault. Otherwise, he would be
*Dowed to derive advantage from a wrongful act of his own. • • •
**Ihave not been unaware that, in examining this question, I have
^Uen into an argument for what seems to be the British side of it against
^J own country. But I am relieved from all embarrassment on that
•object. I had hardly fallen into that line of argument when I dis-
<»vered that iVas really defending and maintaining, not an exclu-
«ively British interest, but an old, honored, and cherished American
€aJi8e,not upon British authorities, but upon principles that constitute
a large portion of the distinctive policy by which the United States have
^^eveloped the resources of a continent, and thus becoming a consider-
able maritime power, have won the respect and confidence of many
DatioDg. These principles were laid down for us, in 1804, by James Mad-

175

§ 328.] VISIT, SEARCH, AND CAPTURE. [CHAP. XVI.

ison, when Secretary of State in the administration of Thomas Jefferson^
in instructions given to James Monroe, our minister to England. Al-
though the case before him concerned a description of persons different
from those who are incidentally the subjects of the present discussion^
the ground he assumed then was the same I now occupy, and the argu-
ments by which he sustained himself upon it have been au inspiration-
to me in preparing this reply.

" • Whenever,' he says, ' property found in a neutral vessel is sup-
posed to be liable on any ground to capture and condemnation, the rule^
in all cases is that the question shall not be decided by the captor, but
be carried before a legal tribunal, where a regular trial may be had, and
where the captor himself is liable to damages for an abuse of his power*
Can it be reasonable, then, or just, that a belligerent commander who*
is thus restricted, and thus responsible in case of mere property of triv-
ial amount, should be permitted, without recurring to any tribunal
whatever, to examine the crew of a neutral vessel to decide the im]K>r-
tant question of their respective allegiances, and to carry that decision^
into execution by forcing every individual he may choose into a service-
abhorrent to his feelings, cutting him off irom his most tender connec-
tions, exposing his mind and his person tq the most humiliating discipline-
and his life itself to the greatest danger. Beason, justice, and humanity
unite in protesting against so extravagant a proceeding.'

<< If I decide this case in favor of my own Government, I must disar
vow its most cherished principles, and reverse and forever abandon its
essential policy. The country cannot afford the sacrifice. If I maintain
those principles, and adhere to that policy, I must surrender the case
itself. It will be seen, therefore, that this Oovemment could not deny
the justice of the claim presented to us in this respect upon its merits.
We are asked to do to the British nation just what we have always in-
sisted all nations ought to do to us."

Mr. Seward, Seo. of State, to Lord Lyons, Dec. 26, 1861. MSS. Notes, Gr. Brit.
* For Lord Rassell's xM)sition in the case, see infra, $ 374. -

The question whether belligerent diplomatic agents may be rc^rded as contra-
band of war is discussed in a future section. See infra, i 374*

<< The American people could not have been united iu a war which,
being waged to maintain Captain Wilkes's act of force, would have prac-
tically been a voluntary war against Great Britain ; at the same time it
would have been a war in 1861 against Great Britain for a cause direct ly
the opposite of the cause for which we waged war agayist the same peo-
ple in 1812.''

Mr. Seward, Sec. of State, to Mr. Adams, Jan. 31, 1862. MSS. Inst , Or. Brit.

'< The Trent affair, all the world sees, was an accident for which not
the least responsibility rests upon this Government. For a time our
national pride and passion appealed to us to abarudon an ancient liberal
policy ; but, even though unadvised, we did not listen to it, and we artt

1^6

CHAP. XVI.] ACTION OF PRIZE COURT MAY BE ESSENTIAL. [§ 328.

toilay, after that occurrence, as read.v and as willing to join other mari
time powers in meliorations of the law, to the extent that France de-
sires, as we were before it happened, and before the civil war com-
menced.''

Mr. Seward, Sec. of State, to Mr. Dayton, Feb. 19, 1862. MSS. Inst., Frauce.

" Necessity will excuse the captor from the duty of sending in the
prize."

Dana's Wheaton, $ 388, note.

^' Where a prize is not fit for a voyage to a place of adjudication, and
yet may be of value, it is customary to sell her. The statutes of the
Doited States assume that a captor, or any national authority, may sell,
in a case of necessity, rather than destroy the vessel; and that the Gov-
eniiuent may itself take a prize into its service, in a case of belligerent
necessity, or if it is unseaworthy for a voyage to a port of adjudication.
(Act 1864, chap. 174, § 28.)"

IM.

" Irrespective of the advantages or disadvantages to claimants or
captors, on the bare question of the capacity of the court to take cogni-
zance of a cause where the prize is not bodily in its custody, but yet is
in existence, there seems to be now no doubt; whether a court will ex-
ercise its functions in any given case of an absent prize is a different
case, and one of discretion, upon circumstances.''

Ihid.

^^All that the Federal States Oovemment can urge is, that we did
much the same thing ourselves before the war of 1812, when we Stopped
American ships and took out of them seamen whom we claimed as Brit-
ish. In point of fact, it was not the same thing, for we merely asserted
on the pari of the Grown a right to the services of our own sailors. We
imputed to the ships in which- those sailors might be found no breach
of neutrality, and consequently we had no right to take them before a
prize court, and therefore, if the right was to be exercised at all, it was
necessary that it should be exercised by our naval officers. • • But
^e do not undertake to justify all our acts of half a century ago. The
law of impressment has been abolished, and it is very certain that during
the last My years nothing of the kind has been attempted*, or even
imagined in England. The law of nations is deduced from the actual
practice of nations ; and as we, during our last war (though sorely in
seed of sailors), did not revive our claim to take our sailors out of
^erican ships, the claim must be held to have been conclusively aban-
doned.» (ill Quarterly Bev., Jan., 1862, art. 8, 269.)

^^ The truth is that this practice never rested upon any principle of
the law of nations at all, but upon a principle of municipal law at vari-
ance with the law of nations. That principle was the doctrine of the
inalienable allegiance of subjects to their sovereigns. The inference
^as that the sovereign had a municipal right to claim the persons and
*?f^ce8 of his subjects wherever they could be found ; and that, in par-
ticnlar, seamen were not protected by a neutral flag, and had no right to
''^ve a neutral power without the King's license. * • He might take
^^ under the old municipal theory of allegiance, wherever they could
w fonnd. But by the modem conceptions of the law of nations, terri-,

8. Mis. 162— VOL. m 12 177

§ 328.] VISIT, SEARCH, AND CAPTURE. [CHAP. XVL

tx)rial independence is the more powerful principle of the two. Within
the territorial limits, or under the flag of another state, every foreign
sovereignty becomes subject. By the law of prize a captor has no prop-
erty in a captured vessel or her cargo until the rightfulness of the seiz-
ure has been decided by a court administering the law of nations; but
as the seizure of British seamen in foreign ships on their allegiance to
King George was a municipal right, and not a right under the law of
nations, the courts of admiralty had no jurisdiction in the matter."
(115 Edinburgh Eev., art. 10, Jan., 1862, 271.)

'^ But though Earl Eussell, in his note of the 3d of December, 1861,
in making the demand for the liberation of the commissioners, places it
on no specific ground, Mr. Seward might be deemed fully justified by
Mr. Thouvenel's reference, in his dispatch to the French minister at
Washington, of the same date, to the previously declared sentiments of
the American Oovernment, and by the approbation with which the in-
tervention based on that statement was received at London, to infer
from the British demand.not only an assimilation to the continental law
of contraband, subsequently adopted by them in terms, but as a conse-
quence thereof an abandonment of any pretension to take persons,
whether English subjects or others, from neutral vessels, on any pretext
whatever, not within the conceded exception of military persons in the
actual service of the enemy .'^

Lawrence's Wheaton (ed. 1863), 217, 218.
As to Trent case, see farther, infra^ $ 374.

By the law of nations a neutral subject, whose property has been
illegSJly captured, may pursue and recover that property in whatever
waters it is found, unless a competent jurisdiction has adjudged it prize.

MiUer v. The Resolution, 2 Dall., 1.

Whenever an officer seizes a vessel as prize he is bound to commit
her to the care of a competent officer and crew, not because the original
crew, when left on board, in case of seizure of the vessel of a citizen or
neutral, are released from their duty without the assent of the master,
but because of a want of the right to subject the crew of the captured
vessel to the authority of the captor's officer. If a vessel were seized
as prize* and no one put on board but the prize-ma«ter, without any
undertaking of the original ship's company' to navigate her under his
orders, the captor might be liable for any loss that followed from insub-
ordination of the crew.

The Eleanor, 2 Wheat., 345.

A vessel which has been rendered liable to capture as enemy's prop-
erty by sailing under the license or pass of the enemy, or for trading
with the enemy, may still be seized and condemned as prize of war
after her return to the United States, by virtue of the general authority
of the Government to seize all enemies' property coming into our ports*
during war. And as a general rule, any person may seize any propertjT^
forfeited to the use of the Government, either by the municipal law okt
by the law of prize, for the purpose of enforcing the forfeiture j and l

178

CHAP. XVl] ACTION OF PRIZE COURT MAY BE ESSENTIAL. [§ 328.

depeuds apon the GoverDmeut itself whether it will act upou the seizure.
If it proceeds to enforce the forfeiture by legal process, this is a sufficient
confirmation of the seizure.

The Caledonian, 4 Wheat., 100.

The United States not having acknowledged the existence of a Mex*
ican Kepublic or State at war with Spain, the Supreme Court does not
recognize the existence of any lawful court of prize at Oalveston.

The Naeva Anna and Liebre, 6 Wheat., 193.

A tortious possession under an illegal capture cannot make a valid
title by a sale.

The Fanny, 9 Wheat., 658.

A captor may, under imperative circumstances, sell the captured
property and subject the proceeds to the abjudication of a court of
prize. The orders of the commaDder-in-chief not to weaken his force
by detaching an officer and crew for the prize, or his own deliberate
and honest judgment, exercised with reference to all the circumstances,
that the public service does not permit him to make such detachment,
will excuse the captor from sending in his prize for adjudication. But
if no sufficient cause is shown to justify the sale, or if the captor has
unreasonably neglected to bring the question of prize or no prize to an
adjadication, the court may refuse to proceed to an adjudication and may
award restitution, with or without damages, upon the ground of forfeit-
ore of rights by the captor, although his seizure was originally lawful.
If the captor should neglect to proceed at all, the court may, upon a
libel filed by the owner for a marine trespass, grant a monition to pro-
ceed to adjudication in a court of prize, or refuse it and at once award
damages. It is the duty of the captor, under the law of nations (affirmed
^ act of Congress), to send captured property in for acyudication by
a court of his own country having competent jurisdiction.

Jeckerv. Montgomery, 13 How., 498.

The United States have the right to ordei* an uncondemned ship, capt-
^^ by the subjects of a foreign power, out of their territory.

1 Op., 78, Lee, 1797. See 8 Lodge's Hamilton, 304.

The word "captured,'' as used in the fourth article of the treaty with
^^ce of 1800 (expired by limitation) as a tecbnical and descriptive
^nn, does not include the meaning, and ought not to be construed to
fcave the effect, of the term '* recaptured" in the sense of the treaty.

lOp., Ill, Lincoln, 1802. As to this treaty, see tftipra, $ 148a.

It is the duty of the captors toplace an adequate force upon the capt-
^ vessel, and the omission to do so is at their own risk.

3 Op., 377, Grandy, 1838.

• The Lone entered the port of Matamoras while it was blockaded by
^ ^nch squadron, and sailed thence, bound to New Orleans, as her

179

§ 328.] VISIT, SEARCH, AND CAPTURE. [CHAP. XVL

port of final destiuatiou. On her homeward voyage she was captured
bj a vessel belonging to the blockading sqoadron. Some days after the
cai>tnre, her captain rescued her and brought her to New Orleans. A
demand was made on the President by the French Government for her
return to the captors. It was advised that he had no i>ower to grant
the demand, the case involving questions to be settled by the courts
and not by the Executive, and that the claimants must go into the
courts. It was also advised that if a vessel, after escaping from her
captors, terminates her voyage in safety, her liability to condemnation
for the escape entirely ceases.

Section 2 of the prize act of 1863 (12 Stat. L.., 759) authorizing the
taking by theOovemment of any captured property and the deposit of
its value in the Treasury, subject to the jurisdiction of the prize court in
which proceedings may be instituted for the condemnation of the prop-
erty, is a valid exercise of the i>ower of Congress to make rules con-
cerning captures. This provision is not in conflict with the public law
of war, and does not impair the just rights of neutrals.

10 op., 519, Bates, 1863.

The act of 1864, on this topic, repealing the act of 1863, assumes the^
right of the Grovemment to direct the appropriation of prizes.

As to hauling down flag, see App., Vol. Ill, $ 328.

V. WffBK ffAVING JUBISDICTIOX SUCH COURT MAT COSCLUDE.

§329. ,

Neither by the law of nations nor by the French American treaty
then in force, had a French consul in Charleston in 1793 jurisdiction to
condemn as legal prize a British vessel captured and brought into that
port by a French frigate ; and such act is not only a nullity, but justifies
an appeal to the French minister to '^ interpose efficaciously to prevent a
repetition of the error."

Mr. Jefferson, Sec. of State, to Mr. Temant, May 15, 1793. 1 Am. St. Pap., 70 ; 3
Jeff. Works, 105. See mipfa, H 1» 148, 328 ; iii/Va, $ 406.

^^ Another doctrine advanced by Mr. Oenet is that our courts can
take no cognizance of questions whether vessels, held by theirs^ as prizes,
are lawful prizes or not; that this jorisdietion belougs exclusively to
their consulates here, which have been lately erected by the National
Assembly into complete courts of admiralty.

'^ Let us consider, first, what is the ext!ent of the jurisdiction which the
consulates of France may rightfully exercise here. Every nation has of
natural right, entirely and exclusively, all the jurisdiction which may
be rightfully exercised in the territory it occupies. If it cedes any por-
tion of that jurisdiction to judges appointed by another nation, the limits
of their power must depend on the instrument of cession. The United

180

CHAP, XVI.] JURISDICTION OF PRIZE COURTS. [§ 329.

States and France have, by their consular convention, given mutually
to their consuls jurisdiction in certain cases specially enumerated. But
that convention gives to neither the power of establishing complete
courts of admiralty within the territory of the other, nor even of decid-
ing the particular question of prize or not prize. The consulates of
France, then, cannot take judicial cognizance of those questions here.
Of this opinion Mr. Genet was when he wrote his letter of May 27,
wherein he promises to correct the error of the consul at Charleston, of
whom, in my letter of the 15th, I had complained as arrogating to him-
self that jurisdiction, though in his subsequent letters he has thought
proper to embark in the errors of his consuls.

" But the United States at the same time do not pretend any right to
try the validity of captures, made on the high seas, by France, or any
other nation, over its enemies. These questions belong, of common
usage, to the sovereign of the captor, and whenever it is necessary to
determine them, resort must be had to his courts. This is the case pro-
vided for in the 17th article of the treaty which says that such prizes
shall not be arrested nor cognizance taken of the validity thereof;
a stipulation much insisted on by Mr. Genet and the consuls, and which
we never thought of infringing or questioning. As the validity of capt-
ures, then, made on the high seas by France over its enemies, cannot be
tried within the United States by their consuls, so neither can it by our
own courts. Nor is this the question between us, though we have been
misled into it.

"The real question is, whether the United States have not a right to

protect vessels within their waters, and on their coasts. The Grange

▼as taken within the Delaware, between the shores of Jersey and of the

Delaware State, and several miles above its mouth. The seizing her

▼as a flagrant violation of the jurisdiction of the United States.''

Mr. Jefferson, Sec. of State, to Mr. Morris, Aug. 16, 1793. MSS. Inst., Ministers.
4 Jeff. Works, 39.

"The merchant vessels of a nation at peace with another can only, if
captured on the high seas, be justly adjudged to be prize by that other
▼ben such vessels shall have violated either the law of nations or some
existing treaty. When either of these causes can be with truth alleged,
the adjudication is not complained of. It is odly in c^es where no law,
whether established by the common consent of the civilized world or by
particular compact between the two Governments, has been infracted —
^ rule which governs the conduct of belligerent and neutral powers
^▼ards each other has been broken by the vessel condemned — that the
United States complain of, and expect compensation for the injury.

'^It is perfectly understood that many of these decisions, alike unjust
*^d injurious, have been made by the French consular tribunals estab-
^hed in Spain. This circumstance in no degree weakens the claim of
^^ United States on the Spanish Oovemment. That complete and ex-

181

§ 329.] VISIT, SEARCH, AND CAPTURE. [CHAP. XVI.

elusive jurisdictioD within its own territory is of the very essence of
sovereignty is a principle which all nations assert. Courts, therefore,
of whatever description, can only be established io^ any nation by the
consent of the sovereign power of that nation. All the powers they pos-
sess mast) be granted by, proceed from, and be a portion of, the supreme
authority of that country in which such powers are exercised. Of con-
sequence, foreign nations consider the decisions of such tribunals in like
manner as if made by the ordinary tribunals of the country. A Gov-
ernment may certainly, at its discretion, permit any portion of its sov-
ereignty to be exercised by foreigners within its territory; but for the
acts of those to whom such portions of sovereignty may be delegated,
the Government remains, to those with whom it has relations, as com-
pletely responsible as if such powers had been exercised by its own sub-
jects named by itself. The interior arrangements which a Government
makes according to its will cannot be noticed by foreign nanons or
affect its obligations to them. Of consequence the United States can
consider the condemnation of their vessels by the French tribunals in
Spain no otherwise than if such condemnations had been made in the
ordinarv tribunals of the nation.

^< Where vessels so condemned have been captured by privateers
equipped in the ports of His Catholic Majesty, or manned in whole or
in part by his subjects, the hostility of the act is rendered still more
complete.

'^ In the one case or in the other, the aggressions complained of are
totally incompatible with those rules which the law of nations (Vat., b.
3, s. 15, 5, 17, 102, 104) prescribes for a conduct of a neutral power.
They are also considered as violating the 6th article of our treaty
with Spain. By that article each nation binds itself to protect by all
means in their power, the vessels and other effects belonging to the
citizens or subjects of the other which shall be within the extent of
their jurisdiction by sea or land, and to use all their efforts to recover
and cause to be restored to the right owners their vessels and effects
which may have been taken from them within the extent of their said
jurisdiction."

Mr. Marshall, Sec. of State, to Mr. Humphreys, Sept. 8, 1600. MS8. Inst., Minis-
ters. See criticis/ns infra, $ 329a.

Unless otherwise provided by treaty, the proper court to determini
the validity of a capture is a prize court appointed by the captor'«
state ; and the establishment of international prize courts, though ven
desirable, can only be effected by treaty, and would probably be a1
tended by many complications.

The proceedings are to be in conformity with the practice of thi
court of trial, but in subordination to the settled rules in this respec
of international law. That captures at sea belong primarily to th. *
sovereign, and the proceeds are to be distributed, after due co'ndemnj
tion bv a prize court, according to the laws imposed bv such sovereigi
see The Banda Booty, L. R., 1 Ad. & Ec, 109; The Siren, 7 Wal'E-i
162, and other cases cited in 1 Kent's Com. (Holmes' note), 102.

182

CHAP. XVI.] JURISDICTION OF PRIZE COURTS. [§ 329.

The taking to the prize court should be prompt, though a bona fide
delay in this respect, caused by the peculiar conditions of the case, does
not expose the captor to liability as a trespasser. Jecker v, Montgom-
ery, 18 How., Ill ; Fay v. Montgomery, 1 Curtis, 266, and cases cited
supra,

''The prize court of an ally cannot condemn. Prize or no prize is a
question belonging, exclusively to the courts of the country of the cap-
tor." (1 Kent Com. 104; Glass v. Sloop Betsey, 3 Dall., 6.) But a prize
court may take jurisdiction of property captured on a vessel although
such vessel was not brought under its cognizance. (The Advocate,
Blatch. Pr. Ca., 142, and 'other cases in same volume. The legislation
of the United States in reference to prizes is to be found in the following
statutes: (1) Act in respect to right of salvage in case of reprisals, Mar.
3, 1800. (2) Supplementary act of Jan. 27, 1813. (3) Act simplifying
process of seizure, March 25, 1862. (4) Sections 2, 6, and 12 of the act
of July 17, 1862, in reference to the U. S. Favy. (5) Act regulating prize
procedure, March 3, 1863. (6) Act regulating prize procedure and dis-
tribution, 1864.)

The following is part of the award of the Geneva arbitrators on Sep-
tember 14, 1872:

''And whereas the judicial acquittal of the Oreto at Nassau cannot
relieve Great Britain from the responsibility incurred by her under the
principles of International law, • • • the tribunal, by a majority
of four voices to one, is of opinion that Great Britain has in this case
iiadled, by omission, to fulfill the duties presented in the first, in the
second, aud in the third of the rules established by article 6 of the
Treaty of Washington.''

See more fully infra, ^i 329, 402a.

As will be seen hereafter (tn/ra, § 359), the ruling the Supreme Court
in the case of The Circassian was disregarded as authority by the sub-
seqaent British and American Mixed Commission.

"There are two apparent exceptions to this exclusive jurisdiction of
tbe prize courts of the captor's country over questions of prize ; first,
where the capture is made within the territory of a neutral state ; and,
second, where it is made by a vessel fitted out within the territory of
the neutral state. In either of these cases the judicial tribunals of such
neutral state have jurisdiction to determine the validity of captures so
pade^ and to vindicate its own neutrality by restoring the property of
its own subjects, or of other states in amity with it. 'A neutral nation,^
^ys the Supreme Court of the United States, ' which knows its duty,
win not interfere between belligerents, so as to obstruct them in the
exercise of their undoubted right to judge, through the medium of their
own courts, of the validity of every capture made under their respective
«>!nini8sions, and to decide on every question of prize law which may
^jise in the progress of such discussion. But it is no departure from
tnis obligation if, in a case in which a captured vessel be brought or
voluntarily comes infra prwsidiaj the neutral nation extends its ex-
^i|iinatioD so far as to ascertain whether a trespass has been com-
^tted on its own neutrality by the vessel which has made the capture.
8o long as a nation dx>es not interfere in the war, but professes an exact
^nipartiality towards both parties, it is its duty, as well as right, and its
^^> good faith, and honor demand of it, to be vigilant iu preventing
iw neutrality from being abused, for the purpose of hostility a;;airist

1S3

§ 320.] VISIT, SEARCH, AND CAPTUEE. [CHAP. XVI.

either of them. » • *^ In the i)erformauce of this duty, all the bel-
ligerents must be supposed to have an equal interest ;, and a disregard
or neglect of it would inevitably expose the neutral nation to the charge
of insincerity, and to the just dissatisfaction and complaints of the bel-
ligerent, the property of whose subjects should not, under such circum-
stances, be restored.' These are not, properly considered, exceptions
to the general rule of prize jurisdiction, but are cases where the courts
of a neutral state are called upon to interfere for the purpose of main-
taining and vindicating its neutrality."

2 Halleck's Int. Law (Baker's ed.), 413. As to uentral duties in this respect, see
infra, $ 399.

The infirmities which attach to the constitution of prize courts are else-
where noticed (^aupraj § 238; tn/ra, § 329a), and attention will be hereafter
called to the cnxumstances which have tended to impair the ailthority
of the prize courts of the United States. See remarks at close of § 362.

In Kaltenborn'« Seerecht ii, 389, the proceedings in the United States
courts in this relation are examined in detail.

A court of admiralty (prize as well as instance) of one nation may
carry into effect the decree of an admiralty court of another nation.
And where the decree was for restitution, which could not be specifically
enforced, it was held that damages might be decreed.

Penhallow v. Doane, 3 Dall., 54.

A district court of the United States, though a court of admiralty,
cannot take jurisdiction of a libel for damages, in case of a capture as
prize, by a foreign belligerent power on the high seas, the captured
vessel not being within the United States, but infra prcesidia of the
captors.

U. S. V, Peters, ihid., 121.

If a captured vessel is abandoned at sea by the captors, and being
thus derelict is taken possession of by a neutral and brought into a
neutral port and libeled for salvage, the district court has jurisdiction
to entertain such libel, and, ex necessitate, may also adjudicate upon the
conflicting claims of the captors and former owners to the surplus. In
such a case the claim of the cai)tors was allowed, as no neutral nation
can impugn or destroy the right vested in the belligerent by the capt-
ure.

McDonongh v. Dannery, ibid., 188.

If a vessel has a Spanish register, and sails under Spanish colors,
and has on board accounts describing her as Spanish property, there is
probable cause for seizing her as belonging to Spanish subjects.

Del Col r. Arnold, iWd,333.

The right to seize a vessel and send her in for further examination
is not the right to spoliate and injure the property captured ; and for
any damage or spoliation the captors are answerable to the owners if
the property be not condemned as prize.

Ibid.

184

CHAP. XVL] JUEISDICTION OF PRIZE COURTS. [§ 329.

The facts in this case (Del Col v, Arnold) were as follows : A French
privateer had captured as prize, on the high seas, an American brig,
called the Grand Sachem, and owned by the defendant in error. At
the time of taking possession of the brig, a sum of money was removed
from her into the privateer ; a prize master and several mariners were
pat on board of her, and were directed to steer for Charleston. On
their way to Charleston a British frigate captured the privateer and
gave chase to the prize ; whereupon the prize-master run her into shoal
water, and there she was abandoned by all on board, except a sailor
originally belonging to her crew, and a passenger. In a short time she
droTeon shore, was scuttled, and plundered. The money taken from her
bj the French privateer, and taken in the latter by the British frigate,
had been condemned in Jamaica. A libel was Hied in the district court
of Soath Carolina by the defendant in error against Del Col and others,
th| owners of the French privateer. When the marshal came with proc.
e£8 against the brig, she was in the joint possession of the custom-
house officers and the privateer's men, the latter of whom prevented the
execution of the process. Thereupon a ship and cargo, a prize to the
privateer, lying in the harbor of Charleston, were attached by the libel-
ant, and sold by agreement between the parties, and the proceeds paid
into court, to abide the issue of the suit. The district court pronounced
a decree in favor of libelant for the full value of the Grand Sachem
and her cargo, with interest at 10 per cent, from the day of capture;
declared <^ that the proceeds of the ship Industry and her cargo, at-
tached in this cause, be held answerable to that amount; " and directed
that the defendant in error should enter into a stipulation to account to
the plaintiffs in error for the money condemned as prize to the British
frigate, or any part of it, that he might recover a« neutral property.
This decree was affirmed by the circuit court and in turn by the Supreme
Court. So far as this case may be interpreted to lend support to the
idea that the courts of a neutral can take cognizance of the legality of
^Uigerent seizure, it has been severely critized by the Supreme Court
(li'Invincible, 1 Wheat., 238), and pronounced to be "glaringly incon-
fiistent" with the acknowledged doctrine of that court.

A belligerent cruiser who, with probable cause, seizes a neutral and
takes her into port for adjudication, and proceeds regularly, is not a
^wjigdoer.

JenniDgs r. CarsoD, 4 Crancli, 2. .

The question whether the res was so situated as to be subject to the
jwisdiction of a foreign prize court is examinable.

Bose V. Himely, 4 Crauch, 241 ; but see Hadson r. Gnestier, 6 ibid., 285.

^ every case of a foreign sentence condemning a vessel as prize of
^f» the authority of the tribunal to act as a prize court is examinable.

Hudson V. Gnestier, 6 Cranch, 281.

185

§ 329.] VISIT, SEARCH, AND CAPTURE. [CHAP. XVI.

A foreign sentence of a competent court, though contrary to the law
of nations, is valid here, because not examinable. Hence, the condem-
nation of an American vessel, by a court of admiralty of France, sitting
at Gnadeloupe, professedly for a violation of the Milan decree in trading
to a dependence of England, was held valid, though this decree had
been declared by Congress to be a violation of international law. If,
however, Confess had gone further and declared sentences of condem-
nation, pronounced under the decree, absolutely void, they wonld have
been so treated by the courts.

Williams v, Armroyd, 7 Crancb, 423.

But the better view is that a sovereigo is as much bound, internationally, for
' erroneous Judicial as for erroneous executive or legislative action ; and that

though a prise court may bind in renij it does not bar a diplomatic appeal for

redress. Infra, $ 329a.

The law of prize is part of the law of nations. In it a hostile cl),ar-
acter is attached to trade independently of the character of the trader
who pursues or directs it.

The Rapid, 8 Cranch, 155.

A donation on the high se.as, by a captor to a neutral, does not ex-
empt the property from recapture, and the donee who brings it into a
port of his own country, must be treated as a salvor.

The Adventure, 8 Cranch, 221.

In a prize cause, the claimant of cargo is not precluded by a sentence -
condemning the vessel as enemies' property, for want of a claim, from
showing in the same cause that the vessel, in fact, was American prop-
erty, and her owner, without any fault of the claimant of the cargo, has
neglected to interpose a claim.

The Mary, 9 Cranch, 126.

On questions of belligerent and neutral rights the Supreme Court will
recognize the decisions of the courts of every country, so far as they
are founded on a law common to every country, not as authorities, but
with respect. The decisions of the courts of every foreign civilized
land show in a given case how the law of nations is understood in such
lands, and will be considered in adopting the rule which is to prevail in
the United States.

Thirty Hogsheads of Sngar v. Boyle, 9 Cianch, 191. See Bupruj $ 6, infra, $ 329a.

The United States having at one time formed a component part of
the British Empire, their prize law was ours ; and when we separated
it continued to be our prize law, so far as it was adapted to our circum-
stances, and was not varied by the power which was capable of chang-
ing it.

Thirty Hogsheads of Sugar r. Boyle, 9 Cranch, 191; The Siren, 13 Wall., 389.

A prize case in the British courts, professing to be decided on ancients
principles, will not be entirely disregarded, unless it be very unreason —
186

CHAP. XVI,] JURISDICTION OP PRIZE COURTS. [§ 329.

able; or be founded on a constraction rejected by other nations. Bat <^it
will not be advanced in consequence of the former relation between the
two coantries, that any obvious misconstruction of public law made by
the British courts will be considered as forming a rule for the American
courts, or that any recent rule of the British courts is entitled to more
respect than the recent rules of other countries,"

Thirty Hogsheads of Sagar v. Boyle, 9 Cranch, 191.

The4X>urt of prize is emphatically a court of the law of nations ; and
it takes neither its character nor its rules from the mere municipal regu-
lations of any country. By this law the definition of prize goods is that
they are goods ta^en on the high seas, jiere bellij out of the hands of the

enemv.

Schooner Adeline, 9 Cranch, 244.

Secaptures are cases of prize and are to be proceeded in as such.

In recaptures •of property of friends the rule of reciprocity is fol-
lowed, and as France awards to recaptors the entire property of friends,
recaptured after twenty-four hours' possession by the enemy, that rule
mnst be applied to French property.

Ibid,

The power of the courts in the United States to adjudge prize cases
is dependent upon legislation by Congress.

The Mary and Sasan, 1 Wheat., 46.

The exclusive cognizance of prize questions belongs in general to the
captaring power, and the courts of other countries will not undertake
to redress alleged marine torts committed by public armed vessels in
ABsertion of belligerent rights. This applies to privateers, duly com-
missioned. But our courts of admiralty will take jurisdiction, to in-
quire if the alleged wrong-doer is duly commissioned, or has, by the use
of our territory to increase his force, trespassed on our neutral rights.

L'lnvincible, 1 Wheat., 238.

The courts of the United States would have authority, in the absence
^ any act of Congress, to decree restitution of property captured in
violation of their neutrality.

The right of adjudicating on all captures and questions of prize be-
^<^Dg8 exclusively to the courts of the nation to which the captor
Wongs and from which his commission issues ; but if a captured ves-
^ be brought or voluntarily comes infra prcMidia of a neutral power, the
^Atter may inquire whether its neutrality has been violated by the capt-
^> and, if any violation be shown, should decree restitution.

The Estrella, 4 Wheat., 298.

187

§ 329.] VISIT, SEABCH, AXD CAPTURE. [CHAP. XVI.

Whenever a captare is made by any belligerent in violation of our
neutrality, if tbe prize come voluntarily within our jurisdiction, it should
be restored to the original owners ; this is done on the footing of the
general law of nations.

La Amistad de Baes, 5 Wheat., 385.

A claimant cannot raise the question of the validity of the captoi's
commission. That is a question between the captor and his Govern-
ment. If the commission be valid, the condemnation is to the jcaptor ;
if not, to the €k)vemment.

The Amiable iMbella, 6 Wheat., 1, 66.

Permission to a foreign public ship to land goods in our portfi does
not involve a pledge that, if illegally captured, they shall be exempted
from the ordinary operation of our laws. Though projierty may be
condemned in the courts of the captor, while lying in a neutral port,
it must be in the possession of the captor there, at the time of tbe con-
demnation } for, if the captor's possession has previously been divested,
the condemnation is invalid.

The Santissima Trinidad, 7 Wheat., 283, affirming 8. C, 1 Brock, where it
held that the qaention of prize or no prize belongs exclasively to thecoorts
of the captor ; and in no case does a neutral assume the right of deciding
it ; but that at tbe same time, as offenses may be committed by a belligerent
against a neatral, in his military operations, which it would be inconsistent
with the neutral character to permit, and which give to the other belliger-
ent, the party injured by tbose operations, claims upon the neutral which
he is not at liberty to disregard ; in such a situation, the neutral has a
double duty to perform; he must vindicate his own rights, and afford re-
dress to the party injured by their violation. It was also held that if the
wrong-doer comes completely within the power of the neutral, the practice
of this Government is to restore the thing wrongfully taken.

Whoever sets up ^ title under a condemnation is bound to show that
the court had jurisdiction of the cause, and that the sentence has been
rightly pronounced upon the application of x)arties competent to ask it.
For this purpose it is necessary to show who are the captors, and how
the court has acquired authority to decide the cause.

In the ordinary cases no difficulty arises on this subject, for the
courts of the captors have general jurisdiction of prize, and their adju-
dication is conclusive upon the proprietary interest. But where the
capture is made by captors acting under the commission of a foreign
country, such capture gives them a right which no other nation, neu-
tral to them, has authority to impugn, unless for the purpose of vindi-
cating its own violated neutrality. The courts of another nation, whether
an ally or a co-belligerent only, can acquire no general right to entertain
cognizance of the cause, unless by the consent or upon the voluntary
submission of the captors.

La Nereyda, 8 Wheat., 108.
188

CHAP. XVL] jurisdiction OF PRIZE COURTS. [§ 329.

The abuse of a commission by making a coUasive capture does not
render the commission void, bat the captors acqaire no title to the
prize.

The Experiment, ibid,, 261.

As to right to impngn captoie, where the captaring veBsel is equipped in onr
waters in yiolation of neutrality, see The Fanny, 9 Wheat., Q66.

Though a superior physical force is not necessary to make a seizare,
there must be aii open, visible possession claimed,^ and a sabmission ta
the control of the seizing officer. If a seizure be voluntarily abandoned
it becomes a nullity, and it must be followed up by appropriate pro-
ceeding to be effectual in conferring rights of prox>ert7.

The Joeefa See^nnda, 10 Wheat., 312.

The validity of the seizure and the question of prize or no prize can
only be determined in the courts upon which jurisdiction has been con-
ferred by the sovereign under whose authority the capture was made.
Neither the President nor any military officer can establish a court
in a conquered country, and authorize it to decide prize cases and ad-
minister the laws of nations.

Jeeker v. Montgomery, 13 How., 496 ; 18 ibid., 110.

When a vessel is captured, the rule is to bring her into some con-
venient port of the Government of the captor for adjudication. The
mere £act of capture does not work a transfer of title, and until there
is a sentence of condemnation or restitution, the captured vessel is held
by the Government in trust .for those who, by the decree of the court,
may have the ultimate right to it.

Demands against property captured as prize of war must be adjusted
in a prize-court. The property arrested as prize is not attachable at
thesnitof private parties; and if such parties have claims which in
tbeir opinion override the rights of the captors, they must present them
to the prize court for settlement. The jurisdiction of a prize court over
& captured vessel is determined by the capture and not by the filing of
a libel.

TheNassan, 4WaU., 634.

ff a ship or cargo is enemy property, or if either be otherwise liable
to condemnation, the circumstance that the vessel, at the time of the
I^Ptnre, was in neutral waters, would not, by itself, avail the claimants
^ apriie court. It might constitute a ground of claim by the neutral
power, whose territories had suffered trespass, for apology or indemnity ;
) ont neither an enemy, nor a neutral acting the part of an enemy, can
^«mand restitution of captured property on the sole ground of capture
^ iJentral waters.

The Sir WiUiam Peel, 5 WaU., 517 ; The Adela. 6 ibid., 266. See as to neutral
rights aAd duties in such cases, infra, $$ 394, 398; supra, $ 227.

189

§ 329.] VJSIT, SEARCH, AND CAPTURE. [CHAP. XVL

A Spauish-owned vessel on her way from New York to Havana, being
in distress, pat, by leave of the admiral commanding the sqnadron, into
Port Boyal, S. 0., then in rebellion, and blockaded by a Government
fleet, and was there seized as a prize of war and used by the Govern-
ment. She was afterward condemned as prize, bat ordered to be re-
stored. She never was restored, damages for her seizure, detention,
and value being awarded. It was held that she was not prize of war,
or subject of capture ; and that her owners were entitled to fair in-
demnity, although it might be well doubted whether the case was not
more properly a subject for diplomatic a^ustment than for determina-
tion by the courts.

The Nneetra SeHora de Regla, 17 Wall., 30.

Prize courts are subject to the instructions of their own sovereign.
In the absence of such instructions their jurisdiction and rules of de-
cision are to be ascertained by reference to the known powers of such
tribunals and the principles by which they are governed nnder the
public law and the practice of nations.

The Amy Warwick, 2 Spragne, 123.

The proceedings of a prize court of the Confederate States are of no
validity in the United States, and a condemnation and sale by such a
court do not convey any title to the purchaser, or confer upon him any
right to give a title to others.

The LiUa, 2 Spragne, 177.

A captured vessel must be brought within the jurisdiction of the
country to which the captor belongs, before a regular condemnation can
be awarded.

1 Op., 78, Lee, 1797. See supra, $ 3*28.

Proceedings against the ship and cargo are to be had before the dis-
trict court of the United States according to the laws of Congress and
the usage and practice of courts of admiralty in prize causes.

1 Op., 85, Lee, 1798.

Where a vessel, alleged to be Danish property, was seized as French
property, on the south side of the island of St. Domingo, and while
proceeding for an examination, under the protection of the American
flag, was seized by a British armed ship and taken into Jamaica and
there condemned, and a claim was made by the Danish subject upon the
Government of the United States for compensation, it was advised that
the first captors were not liable for the first capture and detention for
examination, there being probable cause for the seizure, nor for the
second capture ; and that the Government of the United States was not
bound for the unlawful captures of its subjects.

1 Op., 106, Lincoln, 1802.

190

CHIP. XVI.] HOW FAR PRIZE COURTS CONCLUDE. [§ 329a.

Where a French vessel was captared and condemned as lawful prize
prior to the treaty with France of 1800 (expired by limitation), and one
moiety had been paid to the captors and the other to the United States,
after the signing of the treaty, and on hearing before the Supreme Court,
on writ of error, the decree of the circuit court had been reversed, and
the vessel, etc., had been ordered to be restored, and pursuant thereto
the moiety of the United States had been paid over, and a claim made
for the other moiety which had been paid to the captors, it was advised
that the United States are not liable for such moiety.

1 Op., 114, Lincoln, 1802.

On a reconsideration of the case referred to in the preceding opinion,
and on examination of the opinion delivered by the Supreme Court,
giving a judicial interpretation of the treaty referred to, the preceding
opinion is substantially reaffirmed.

I Op., 119, Lincoln, 1802.

Proceedings in the vice-admiralty court at St. Domingo are nullities,
for the reason that the court is not legally constituted.

5 Op., 689, appendix, Lee, 1798.

No title to a captured vessel and cargo passes to the captors till a
sentence of condemnation has been passed by a court having jurisdic-
tion.

3 Op., 317, Grnndy, 1838.

When the courts have acquired jurisdiction of cases of maritime capt-
^ the political department of the' Government should postpone the
consideration of questions concerning reclamations and indemnities
uitil the judiciary has finally performed its functions in these cases.

II Op., 117, Bates, 1864.

Prize courts are tribunals of the law of nations, and the jurisprudence
they administer is a part of that law. They deal with cases of capture
^ difitingaished from seizures ; their decrees are decrees of condemna-
tion, not of forfeiture; they judge the character and relations of the
vessel and cargo, and not the acts of persons.

UOp., 445, Speed, 1866.

Ab tfi captures, see infra, $ 345.

^ ^V12>10T WREN NOT IN CONFORMITY JVITH INTERNATIONAL LAW.

§ 329a.

'^B is elsewhere seen, the executive and the judiciary, being co-ordi-
nate powers, and the former being intrusted distinctively with the foreign
relations of the state, it is not governed in such relations b^ the deci-
swns of the latter, though such decisions are entitled to great deference.
Va, § 238.

191

§ 329a.] VISIT, SEARCH, AND CAPTURE. [CHAP. XVL

[t has been also seen that a foreign judgment on a question of inter-
national law, to be a bar to a claim, must be in accordance with sound
principles of international law. Supra^ § 242, and cases cited in § 329.
See as to judgments invalid by international law supra^ § 242.

The question of the ubiquitous validity of the action of prize court*
was discussed in the case of the Betsey by the board of commission-
ers acting under the 7th article of the treaty of 1794. The Betsey had
been condemned by the vice-admiralty of Bermuda, and the condem-
nation had been affirmed by the lord commissioners of appeal. It hav-
ing been argued that this affirmance setUed the question internation-
ally, Mr. Pinkney, who was one of the commissioners under the treaty,,
conceded that, adopting the words of the answer to the British memo-
rial, " the legality of a seizure as prize is to be determined in the courts
of the nation to which the captor belongs, judging according to the
law of nations, and to treaties (if any) subsisting between the states
of the captor and claimant." He proceeded, however, to adopt from
Eutherford (2 Nat. Law, 593) the position that *' the right of the state
to which the captors belong, to judge exclusively, is not a complete
jurisdiction. The captors, who are its members, are bound to submit to
its sentence, though this sentence should happen to be erroneous, be
cause it has a complete jurisdiction over their persons ; but the other
parties to the controversy, as they are members of another state, are
only bound to submit to its sentence as far as this sentence is agreea-
ble to the law of nations or to particular treaties, because it has no
jurisdiction over them in respect either of their persons or of the things,
that are the subject of the controversy. If justice, therefore, is not
done them, they may apply to their own state for a remedy, which may^
consistently with the law of nations, give them a remedy, either by
solemn war or by reprisals." After adopting this position, as further
explained by Rutherford, Mr. Pinkney proceeds to say : " From the fore-
going quotations it may be collected that the jurisdiction of the court
of the capturing nation is complete upon the point of property ; that its
sentence forecloses all controversy between claimant and captors, and
those claiming under them ; and that it terminates forever all ordinary
judicial inquiry upon the matter of it. These are the unquestionable
effects of a final admiralty sentence, and in these respects it is unim-
peachable and conclusive." * ♦ * But "neither the United States
nor the claimants, its citizens, are bound to take for just the sentence
of the lords, if in fact it is not so ; and that the affirmance of an illegal
condemnation, so far from legitimating the wrong done by the original
seizure,' and precluding the neutral from seeking reparation for it
against the British nation, is peculiarly that very act which consum-
mates the wrong, and indisputably perfects the neutral's right of de-
manding that reparation through the medium of the Government.
♦ * • If the largest possible scope be given to the jurisdiction in
question, still it is a jurisdiction which must be rightfully woed by the
state that claims it. The law of nations cannot be supposed to give
to one state the right of invading, under judicial forms, the property
of another." Dr. NichoU, better known by his subsequent title of Sir
J. NichoU, an eminent civilian, who was also a commissioner, agreed in
holding the action of the lords commissioners as not concluding the
claimants from recourse to an international appeal. (Wheaton's Life of
Pinkney, 199, 206, 208.) Prize courts, in fact, are to be viewed in two
aspects : The first is that of international tribunals, in which capacity
they bind the thing acted on everywhere, and bind the parties so far

192

CHAP. XVI.] HOW FAR PRIZE COURTS CONCLUDE. f § 329o.

88 coDcerns sncb thinij:. The second is that of domestic tribunals (in
which li«ht they are to be considered in all respects, except as to tne
proceedings in rem), which are simply agents of the sovereign which
commissions them. Hence, a sovereign is as much liable internation-
ally for the wrongful action of prize courts as he is ior the wrongful
action of any other courts. It was consequently held in the case of the
Betsey, before the Loudon commission of 179S-1804, that while the de-
cigJoDs of prize courts bind the parties, so far as concerns the particular
litigation acting in rem, they may be contested by the Government of
the party which feels aggrieved.

MSS. Returns of Comm. Dept. of State.

A judicial decree contravening the law of nations has no extraterri-
torial force.

Mr. Evarts, Sec. of State, to Mr. Brnnetti, Oct. 23, 1878. MSS. Notes, Spafn.
Mr. Bayard, Sec. of State, to Mr. McLane, Jane 23, 1886. MSS. Inst., France.

Supra, $$8,238,242.
As to non-nbiqnity of bankrapt decree, see supra, $ 9.

The preamble to the judgment of the Geneva Tribunal of 1872 de-
cbrea that the judicial acquittal of the Oreto, at Nassau, cannot re-
lieve Great Britain from the responsibility incurred by her under the
principles of international law.

See infra, $ 402a ; avpra, } 329.

*Ut is true that the vice-admiralty court of the Bahamas, by its judg-
ment, which is given at page 521 of the fifth volume of the Appendix
to the American case, acquitted the Florida of every charge; but, while
respecting the authority of the res judicata, I ask whether it is possible
todedace from this an argument on which to found a moral conviction
that the English Government is released from its responsibility under
the rales laid down in Article VI of the Treaty of Washington t I ab-
stain firom repeating the considerations into which my honorable col-
leagues who have preceded me have entered on this subject.

"It is not the question of special legal responsibility with which we
here to deal, but rather that of the responsibility which results
fom the principles of international law, and the moral conviction at
vhieh we have arrived in consequence of the acts imputed to the Florida.

"This conviction is strengthened by a consideration of the terms of the
ooDclnsion of the judgment of the vice-admiralty court, where it is said,
^that all the circumstances of the case taken together seem sufficient
to justify strong suspicion that an attempt was being made to infringe
^^ neatrality so wisely determined upon by Her Majesty's Government.'

"The decision of the vice- admiralty court may then be considered as
conclusive, even if not perfectly correct, as between those who claimed
^6 vessel and the British Government, which claimed its confiscation
^<Ier the clauses of the foreign-enlistment act; but I do not think it is
SQfficient to bar the claim of the United States against Great Britain,
^e United States were not parties to the suit; everything relating to
^t is for them res inter alios acta,^

Coant Sclopis, opinioti in Geneva Tribunal of 1872. 293

S. Mia. 101'— YOU Ui 13

•5 329a.] VISIT, search, and capture. [chap. xvi.

^^ The objection tbat the judicial decision at Nassau relieves Great
Britain of all responsibility cannot be marntained. As regards the in-
ternal (or monicipal) law, the judgment is valid ; but as far as interna-
tional law is concerned, it d6es not alter the ][>osition of Great Britain.^

Mr. Staempli. ibid.

In the opinion of Judge John Davis on French spoliations, Gt. of
Cls., May 17, 1886, is the following :

'' The defendants say, further, the condemnation cannot be illegal be-
cause made by a prize court having jurisdiction, and the decisions of
such courts are final and binding. This proposition is of course admitted
80 far as the res is concerned ; the decision of the court, as to that, is
undoubtedly final, and vests good title in the purchaser at the sale; hot
60 as to the diplomatic claim, for that claim has its veiy foundation in the
judicial decision, and its validity depends upon the justice of the court's
proceedings and conclusion. It is an elementary doctrine of diplomacy
that the citizen must exhaust his remedy in the local courts before he
can fall back upon his Government for diplomatic redress ; he must
then present such a case as will authorize that Government to nrge that
there has been a failure of justice. The diplomatic claim, therefore, is
based not so much upon the original wrong upon which the court de-
cided, as upon the action and conclusion of the court itself, and, diplo-
matically speaking, there is no claim until the courts have decided.
That decision, then, is npt only not final, but on the contrary is the
beginning, the very comer-stone, of the international controversy.
This leads ns naturally to another point made by the defense, in that
the claimant did not 'exhaust his remedy' because he did not prosecute
an appeal. We of course admit that usually there is no foundation for
diplomatic action until a case cognizable by the local conrts is prose-
cuted to that of last resort ; but this doctrine involves the admission that
there are courts freely open to the claimant, and that he is unhampered
in the protection of his rights therein, including his fight of appeal. It
is within the knowledge of every casual reader of the history of the
time that no such condition of afibirs in fact then existed. ^

'^ The very valuable report of Mr. Broadhead shows that prior to
March 27, 1800, there was no appeal except to the department of the
Loire-Inf6rieure, and in the then existing state of bad feeling and modi-
fled hostilities, and under the surrounding circumstances, this was to
the captains of the seized vessels, in most if not in all cases, a physical
impossibility. Nor prior to the agreement of 1800 was there any prac-
tical reason for appealing to a court when the result, as our seamen be-
lieved, whether rightly or not, but still honestly, was a foregone con-
clusion, an<J while negotiations were progressing for a settlement; nor
is there anything in these negotiations showing that a technical exbaus-
tionof lepal remedy would be required. We are of opinion that the

194

OHAP. XVI.] HOW FAR PRIZE COURTS CONCLUDE. [§ 329a.

claimant was not, under these purely exceptional circumstances, obliged
to prosecute bis case through the highest court, even if he could have
doue so, which we doubt."

^*Tbe Danish objection to the claims (for spoliations of American com-
merce in 1S09 and 1810) was thus stated in a note of August 17, 1825,
to Hughes : * The sentences by which vessels bearing the flag of the
United States have been released or condemned by the prize tribunals,
^r high court of admiralty, are without appeal, and cannot, without
derogating from that which has been established from the remotest
times in the Danish monarchy, be altered or annulled.' In a paper of
marked ability, Wheaton controverted this. He said: *The institu-
tion of these tribunals, so lar from exempting or being intended to ex-
-empt the sovereign of the belligerent nation from responsibility, is
de.sif!iied to fix and ascertain that responsibility. Those cruisers are
responsible only to the sovereign whose commission they bear. So long
48 seizures are regularly made upon apparent grounds of just suspicion,
■and followed by prompt adjudication in the usual mode, and until the
acts of the captors are confirmed by the sovereign in the sentences of
tbe tribunal appointed by him to adjudicate in matters of prize, the
ncQtral has no ground of complaint, and what he suffers is the inevita-
ble coDseqaeuce of the belligerent right of capture. But the moment
the decision of the tribunal of last resort has been pronounced against
tbe claimant (supposing it not to be warranted by the facts of the case,
and the law of nations as applied to those facts), and justice has thus
been finally denied, the capture and the condemnation become the acts
of tbe state, for which the sovereign is responsible to the Government
of tbe claimant. • * • No greater sanctity can be imputed to the
proceedings of prize tribunals, even by the most extravagant theory of
the conclusiveness of their sentences, than is justly attributed to the acts
^)f tbe sovereign himself. But those acts, however binding on his own
^objects, if they are not conformable to the public law of the world, can-
not be considered as binding on the (subjects of other states. A wrong
done to them forms an equally just subject of complaint on the part of
their Qovemment, whether it proceed from the direct agency of the

^vereign himself, or is inflicted by the instrumentality of his tribu-
nals.'

^Tbe claimants sent an agent to Copenhagen, with power to agree
^pon a compromise sum in gross. The King of Denmark offered to
1^7 half a million marks-banco of Hamburg. Wheaton said that the
l^ited States would consent to accept three millions of marks-banco.
|li« parties agreed at length upon six hundred and fifty thousand
Spanish milled dollars. In informing Mr. Van Buren of the signature
of tbe treaty, Wheaton said: 'I have not before me sufficient material
from which to form a judgment as to the real amount of the losses un-
jnstly gustained by our citizens from Danish captures. You will find
^bat Mr. Ewing, in his correspondence, estimates the actual loss at about
^M^,000, reckoning about thirty-five condemnations ^^ quite unjust," to
^bis own expression. But supposing the real injury to have been
^nsiderably greater, the sum now recovered, considering the diminished
'Purees of this exhausted country, will, I trust, be considered as a
tolerable salvage from this calamitous concern.'"

Mr. J. C. B. Davis, Notes, &c.

Ab to treaty relations with Denmark, see Bvpra, J 147.

195

§ 329a.] VISIT, SEARCH, AND CAPTUEE. [CHAP. XVT,

'' * Whore the responsibility of the captor ceases,' says Mr. Wheaton,
< that of the state begins. It is responsible to other states for the acts of
the captors under its commission the moment these acts are confirmed
by the definitive sentence of the tribunals which it has appointed to de-
termine the validity of captures in war.' The sentence of the judge is-
conclusive against the subjects of the state, but it cannot have the same
controlling efficiency towards the subjects of a foreign state. It pre^
vents any further judicial inquiry into the subject-matter, but it does not
prevent the foreign state from demanding indemnity for the property
of its subjects, which may have been unlawfully condemned by the prize-
court of another nation/ "

2 Halleck's Int. Law (Baker's ed.), 429, citiug Wheaton's Elements, part iv,.
chap. 2, $ 15.

Mr. Alexander Hamilton took, as to the treaty of 1794, the same po-
sition in a letter of October 3, 1795, to Mr. Wolcott (8 Hamilton's-
Works, Lodge's ed., 359.) Mr. Hamilton gives the' following reasons:

1. ^^ The subject of complaint to be redressed is irregular or illegal
captures or condemnations."

2. ''The article contemplates that various circumstances may ob-
struct compensation in the ordinary course of justice." After giving:
other reasons be asks : ^' Is not the constitution of such a tribunal (a.
commission) by the two parties a manifest abandonment of the preten-
sion of one to administer justice definitely through its tribunals f " He-
stAtes that he understood Mr. Burr and Mr. B. Livingston, whom he had
met at a consultation, agreed with him in this view, though it was io.
conflict with an opinion given by Mr. Eawle and Mr. Lewis.

^< The attention of the mixed commission has been repeatedly called*
to the precedent of the authority exercised by a similar commission un-
der the British treaty of 1794, and of the discussion between the British*
and American commissioners on the point, the American commissioners
sustaining the fullness and supremacy of the jurisdiction which the-
British commissioners question^. The disposition made of the doubt
by the lord chancellor (Loughborough) in his answer to the fifth com*
missioner. Colonel Trqmbull, who had submitted the point for his ad-
vice, is well known. 'The construction of the American gentlemen is-
correct. It was the intention of the high contracting parties to the
treaty to clothe this commission with power paramount to all the mari-
time courts of both nations — a power to review and (if in their opinion it
should api)ear just) to revise the decisions of any or all the maritime
courts of both.'"

TrumbaU's Reminiscences -of his Own Times, 193, quoted in argnment of Mr.
Evarts before the British and American Mixed Commission in the Springbok
case, 29. See infra, i 362.

In 1753, Prussia successfully held Great Britain responsible for the
erroneous action of British prize courts ; and the same result attended
the exceptions of the United States to British condemnations before the
mixed commission under the treaty of 1794, as already stated, and the
exceptions taken by the United States to Danish condemnations, for*
which Denmark was held responsible.

2 Halleck's Int. Law (Baker's ed.)» 431.
196

CHAP. XVI.] HOW FAR PRIZE COURTS CONCLUDE, [§ 329a.

<* The sovereign is therefore held responsible to the state whose citizen
the claimaint is, that no injustice is done by the capture."

Dana's WheatoD, $ 388| note.

In a dissenting opinion by Judge Thomas Cooper, in Dempsie, assignee
of Brown, v. Insurance Gompany, in the Pennsylvania court of errors
and appeals, 1808 (referred Xosupra^ § 238), the following reasons are given
for declining to assign international conclusive authority to the decisions
of foreign prize courts :

'^They are emanations of the executive authority, the judges sitting,
mot during good behavior, but during pleasure.

*'They are bound by executive instructions which are always dic-
tated by the interest of the belligerent. (To this a note is appended
oalling attention to the fact that Napoleon's Milan decrees were directed
to the Tribunal des Prizes ; and that the British orders of council of
1807 were directed inter alios to the British courts of admiralty and vice-
admiralty.)

*^They are the courts of the belligerent ; the plaintiffs, libelants, are
the subjects of the belligerent, cruising under the authority and protec-
tion of the belligerent.

"The property, if condemned, enriches the belligerent nation. • • •

" The proceedings are written, by interrogatories and answers ; by the
oivii law, and not by the common law of our own country or of Eng-
land.

"There is no intervention of a jury trial, nor any viva voce examina-
tion of testimony.

"The salary of a British judge depends on a great degree upon the
number of condemnations. 1 believe it is £15 sterling a vessel." On the
last |H)int it may be mentioned that the practice which exists in some
oonutries of vesting in the judge .the appointment of clerks and other
officials who receive large emoluments from condemnations, coupled
with the i'act that the offices in question are often occupied by members
of the judge^s family, or by personal friends whose interests he has at
heart, must, from the nature of things, influence the judge in the shape
which he gives the case, unconscious as he niay be of such influence.
"A power over a man's sustenance," so substantially said Oh ief- Justice
Otbson, of Pennsylvania, in declaring unconstitutional an act of the
legislature of that State reducing the salaries of the judges, " is a power
over himself," and a power of this kind over the judiciary, it was held, it
was not constitutional for the legislature to assume. Yet what power
of this character could be more subtle than that exercised over an ad-
miralty Judge by a prize case coming before him with an offer of large
•emoluments to himself, or to some one of his family or friends, if a con-
demnation be decreed t That such a temptation would not be con-
sciously yielded to By British or American judges may be unhesitatingly
affirmed. But the atmosphere of influence which such a condition of
4Jbing8 generates is no less pervasive and powerful than would be that of
temptations directly and avowedly applied \ and it is imi)0ssible not to ad-
mit that in this atmosphere judges of prize courts have been from time to
time immersed, and that it is from some, at least, of these judges that
the precedents which make up our prize law have been in part drawn.
Judge Cooper's opinion, from which the above points are taken, was
published in Philadelphia, in 1810, with a preface by Mr. A. J. Dallas,
United States district attorney in Philadelphia, and aferwards Secre-
tary of the Treasury. In this preface, which adopts and defends th^

197

§ 329a.] VISIT, SEARCH, AND CAPTURE. [CHAP. XVI..

views of Jad^e Cooi>er, is cited Lord Ellenborougb's coutemptuous-
censure 'in Fisher v. Ogle, 1 Camp., 418, and Donaldson v. Thompson,
*Wd, 429) of foreign courts of admiralty, and Mr. Dallas proceeds to-
declare that "whatever the animosity of the belligerents can generate
against each other, whatever their power can impose on the rest of the
world, is now the law of war, the only measure of justice, while the
neutral flag, instead of producing respect and safety, is the certain
signal for insult and aggression."

Mr. Wheaton, after noticing Lord StowelPs claim to absolute supe-
riority from national prejudice, argues that it was impossible for that
eminent judge to divest himself of ])rejudice8 favorable to the develop-
ment of a great maritime nation such as England. (Wheat. Hist., 711. >
On the other hand. Chancellor Kent (1 Com., 8) declai-es that "there
is scarcely a decision in the English prize courts at Westminster, on
any general question of public right, that has not received the express^
approbation and sanction of our national courts."

But, as is illustrated by the remarks of Mr. Cushing and Sir. T. Twiss-
(quoted supra ^ § 238«), the present tendency of opinion is to regard the
prize-court rulings of Great Britain during the Napoleonic wars, and
the rulings in this country based on them, as not binding executive ac-
tion in matters of international law. And, as has also been noticed, the
high belligerent prerogatives claimed by Sir W, Scott (Lord Stowell),.
and adopted on his authority by our own Supreme Court, have lately
been so modified by the English courts as to make them consonant with
the views held on the same topic by the executive department of the-
Government of the United States as well as by the great body of Eu-
ropean publicists.

Supra, $$ 236, 238a, 242 ; infra, $ 362 ; note to the Springbok case.

The prevalent opinion now is, that in international controversies a
sovereign can no more protect himself by a decision in his favor by
courts established by him, even though they be prize courts, than he^
can by the action of any other d^epartment of his Government:

Supra, $$ 23Sa, 242. See this noticed in the Springbok case, infra, $ 3<i2.

'^ The instant that a court sitting to administer international law re*^
cognizes either governmental orders or proclamations setting forth gov-
ernmental policy as constituting rules of that code, at once that court
ceases in fact to administer in its purity the law which it pretends ta
administer. * * • The functions of the tribunal have undergone a
change which is justly and inevitably fatal to its weight and influence
with foreign powers. It is not only a degradation to itself, but it is a
mischievous iuj ury to the Government which has destroyed the eflSciency
of an able ally."

5 Am. Law Rev., 255.

In an article in the Edinburgh Review for February* 1812, nnder the title of "Dis-
putes with America " (vol. 19, p. 290), the coutraat between Sir William Scott's opin-
ions in 1798 and 1799 and those stated by him in 1811, is thus stated. In the Maria,
(1 Rob., 350, June 11, 1799), he npoke as follows : " In my opinion, if it could be shown,
that, regarding mere speculative general principles, such a condemnation on<;ht to b^
deemed sufficient, that would not be enough; more must l>e proved, * it must b^
shown that it is conformable to the usage and practice of nations.' A great part o^
the law of nations stands on no other foundation. It is introduced, Indeed, by gene-^

198

CHAP. XVI.] HOW FAR PRIZE COURTS CONCLUDE. [§ 329a.

ral principles ; bat it travels with tho:3e general principles only to a certain extent ;
and if it Btops there, yon are not at liberty to go farther, and to say that mere gene-
ral specolation woald bear you out in a farther progress." " It is my duty not to
admit, that because one nation has thought proper to depart from the common usage
of the world, and to meet the notice of mankind in a new and unprecedented manner,
that I am on that account under the necessity of acknowledging the efflcacy of such
a novel institution, merely because general theory might give it a degree of counten-
ance, independent of all practice from the earlient history of the world." (1 Rob.,
^^JF' ) "Sach," says the Edinbsrgh Review, '* were the sound, enlightened, and con-
sistent doctrines promulgated by the learned Judge in the years 1798 and 1799, doc-
trines wholly nnconnected with any ' present purpose of particular national interest,'
nninflaenoed by any preference or ' distinction to independent states; ' delivered from
a seat * of judtdal authority locally here,' indeed, but according to a law which *ha»no
toeality,* and by one whose duty it is to determine the question exactly as he would
determine the que6tion, if sitting at Stockliolm,' ' asserting no pretentions, on the
part of Great Britain, which he would not allow to Sweden.'" • • • « Twelve
years," so continues the Review, ** have passed away since the period of those beau-
tiful doctrines — an interval not marked by any general change of character among
neutrals, or any new atrocities on the part of belligerents— distinguished by no pre-
tensions which had not frequently before been set up by the different parties in the
war, except that on both sides the right of unlimited blockade had been asserted,
France, complaining that England, in 1806, and previously, exercised this power, had
declared England and her colonies in a state of blockade ; and England, in her torn,
proclaimed all France, and her allies, blockaded. There were orders and decrees on
both sides; and both parties acted upon them. The nentrals protested; and, recol-
lecting the sound and impartial principles of our prize courts in 1798 and 1790, they
tppealed to that 'Judicial authority which has its seat locally her^,' but is bound to
enforce ' a law that has no locality,' and ' to deterxdine in London exactly as it would
in Stockholm.' The question arose, whether those orders and decrees of onei belliger-
ent Justified the capture of a neutral trader, and on this point we find Sir W. Scott
delivering himself with his accustomed eloquence, with a power of language, indeed,
which never forsakes him, and which might have convinced any person!, except the
offering parties to whom it was addressed. (Case of the Fox, 30th May, 1811.)

*" It is strictly true that by the constitution of this country, the King iu council
Voaeeases legislative rights over this court, and has power to issue orders and instruc-
tions which it is bound to obey and enforce ; and these constitute the written law of
this eourt. These two propositions, that the court is bound to administer the law of
nstiona, and that it is bound to enforce the King's orders in council, are not at all in-
eoD&iBtent with each other; because, these orders and instructions are presumed to
ooQform themselves, under the given circumstances, to the principles of its unwritten
Isv. They are either directory applications of those principles to the oases indicated
in them, cases which, with all the facts and circumstances belonging to them, and
^lueh constitute their legal character, coald be but imperfectly known to the court
itself, or they are positive regulations, consistent with those principles, applying to
loatteiB which require more exact and definite roles than those general principles are
«»Pable of furnishing.

"'The constitution of this court, relatively to the legislative power of the King in
^Qcil, is analogous to that of the courts of common law relatively to that of the
Parliament of this Kingdom. Those courts have their unwritten law, the approved
principles of natural reason and justice ; they have likewise the written or statute law
^ acta of Parliament, which are directory applications of the same principles to par-
ticular snbjects, or positive regulations consistent with them upon matters which
"•oold remain too much at large if they were left to the imperfect information which
tl» courts could extract from mere general speculations. What would be the duty of
^ individuals who preside in those courts, if required to enforce un act of Parliament

§ 329a.] VISIT, SEARCH, AND CAPTURE. [CHAP. XVI.

wliioh contradicted those principles, is a question which I presume they wonld not
entertain a priori; hecanso they will not entertain a priori the supposition that any
such will arise. In like manner, this court will not let itself loose into speculations
as to what wonld be its duty under such an emergency ; because it cannot, without
extreme indecency, presume that any such emergency will happen ; and it is the less
disposed to ehtertain them, because its own observation and experience attest the
general conformity of such orders and instructions to its principles of unwritten law.'
(Pp. 2, 3.)

" Here there are two propositions mentioned, asserting two several duties which the
court has to perform. One of these is very clearly described ; the duty of listening to
orders in council, and proclamations issued by one of the parties before the court i
the other, the duty of ^^ministering the law of nations, seems so little consistent with
the former, that we naturally go back to the preceding passage of the Judgment where
a more particular mention is made of it. * This court,' says the learned J udge, ' is bound
to administer the law of nations to the subjects of other countries, in the different re-
lations in which they may be placed towards this country and its Government. This
is what other countries have a right to demand for their subjects, and to complain if
they receive it not. This is its unwritten law evidenced in the course of its decisions,
and collected from the common usage of civilised states.'

" The faultless language of this statement all will readily confess and admire. The
more Judicial virtues of clearness and consistency may be more doubtful in the eyes
of those who have been studying the law of nations under the same Judge, when ruling
the cases of the Flad Oyen and Swedish Convoy. It is with great reluctance that we
enter upon any observations which may appear to question anything stated by such
accurate reporters, by Dr. Edwards and Sir C. Robinson, to have been delivered in the
high court of admiralty. But we have no choice left ; we must be content to make
our election between the doctrines of 1799 and 1811, and to abandon one or the other.
The reluctance which we feel is therefore materially diminished ; for, if we venture
to dispute the law recently laid down by the learned Judge, it is upon his own au-
thority in times but little removed from the present in point of date, and nowise dif-
fering from them in any other respect.

'' How, then, can the court be said to administer the unwritten law of nations be-
tween contending states, if it allows that one Government, within whose territory it
' locally has its seat,' to make alterations on that law at any moment of time f And
by what stretch of ingenuity can we reconcile the position, that the court treats the
English Government and foiyign claimants alike, determining the cause exactly as it
would if sitting in the claimant's country, with the new position that the English
Government possesses legislative powers over the court, and that its orders are in the
law of nations what statutes are in the body of municipal law f These are questions
which, we believe, the combined skill and address of the whole doctors of either law
may safely be defied to answer.

** Again, what analogy is there between the proclamations of one belligerent, as re-
lating to ])oints in the law of nations, and the enactments of statute, as regarding the
common law of the land f Were there indeed any general council of civilized states—
any congress, such as that fancied in Henry IV's famous project for a perpetual
peace— any amphytyonic council for modern Europe ; its decisions and edicts might
bear to the established public law the same relation that statutes have to the munici-
pal code, because they would be the enactments of a common head, binding on and
acknowledged by the whole body. But the edicts of one state, in questions between
that state and foreign powers, or between that state and the subjects of foreign powers,
or between those who stand in the place of that state and foreign Governments or
individuals, much more nearly resemble the acts of a party to the cause than the en-
actments of the law by which both parties are bound to abide.

** Mark the couHequences of such loose doctrines, such feeble analogies. They re-
solve themselves into an immediate denial that any such thing as the law of nations

200

•CHAP. XVI.] HOW FAR PRIZE COURTS CONCLUDE. [§ 329a.

exists, or that contending parties have any common court to which all may resort
for Justice. There may be a court for French captors in France and for English captors
in England. To these tribunals such parties may respectively appeal in safety ; for
they derive their rights from edicts issued by the Governments of the two countries
severally ; and those edicts are good law in the prize courts of each. But for the
American olaimant, there is no law by which he may be redressed, no court to which
he may resort. The edicts of his Oovemment are listened to in neither the French nor
the English tribunals ; and he is a prey to the orders of each belligerent in succession.
Perhaps it may be thought quite a sufficient hardship, without this aggravation, that
^ren under the old and pure system laid down in 1799 and 1798, the neutral was forced
to receive his sentence in a foreign court, always in the courts of the captor's country.
Bat this undoubted rule of law, tempered by the Just principles with which it was
teeompanied, appeared safe and harmless. For, though the court sat locally in the
belligerent country, it disclaimed all allegiance to its Government, and professed to
•decide exactly as it would have done sitting in the neutral territory. How is it now,
^beo the court, sitting as before, has made so large a stride in allegiance as to profess
in implicit obedience to the orders of the belligerent Government within whose domin-
ion it actsf

"That a Government should issue edicts repugnant to the law of nations, may be a
tQppoeition unwillingly admitted ; but it is one not contrary to the fact, for all Gov-
^ernmeDts have done so, and England among the rest, according to the learned Judge's
own etstement. Neither will it avail to say that, to inquiro into the probable conduct
of the prize courts in such circumstances, is to favor a supposition which cannot be
enteitained ' iHthcui extreme ifidecenc^,' or to compare this with an inquiry into the
probable conduct of municipal courts in the event of a statute being passed repugnant
to the principles of municipal law. The cases aro quite dissimilar. The line of con-
duct for municipal courts in such an emergency is clear. No one ever doubted that
they rnnat obey the law. The old law is abrogated, and they can only look to the
<Mw. Bat the courts of prize are to administer a law which cannot, according to Sir
William Bcott (and if we err it is under the shelter of a grave authority), be altered
by the practice of one nation, unless it be acquiesced in by the rest for a course of
y^n; for he has laid down that the law, with which they are conversant, is to be
fathered from general principles, as exemplified in the constant and common usage
oUUnitions.

''Perhaps it may bring the present case somewhat nearer the feelings of the reader
^ he figures to himself a war between America and France, in which England is
^^ttH At first, the English traders engross all the commeroe which each belliger-
ent laerifices to his quarrel with his adversary. Speedily the two belligerents become
Joilou of England, and endeavor to draw her into their contest. They issue decrees
*8>uuteach other nominally, but, in effect, bearing hard on the English trade; and
^^Klish Teasels are carried by scores into the ports of America and France. Here
^^y ikppeal to the law of nations : but aro told, at Paris, that this law admits of
'Edifications, and that the Fronch courts must be bound by the decrees of the Tuil-
^'^'i at New York, that American courts take the law of nations from Washing^n ;
^ in both tribunals, that it ia impossible, ' witlieut extreme indecency,' to suppose the
e>Mof any public act of state being done which shall be an infringement on the-
^^ of nations. The argument may be long, and its windings intricate and subtle;
bQttheresnlt is short, plain, and savoring of matter of fact, rather than matter of
***« all the English vessels carried into either country would be condemned as good
*»d Uwfol prize to the captors."

. In 115 EdiDburgh Review, (January, 1862,) 261, we have the follow-
J?^' "Lord Stowell conceived this country to be engaged in a revolu-
"^"•ary contest, because we had the misfortune to be at war with a rev-
''taionary government. The landmarks of former times and the stipu-

201

§ 330.] VISIT, SEARCH, AND CAPTURE. [CHAP. XVI^

lations of more recent treaties were swept away by the torreut ; but we-
are bold to assert that it is not for the interest or the honor of this conn-
try to attempt at this day to apply the extreme, and often unjustifiable,,
rules which may boast Lord Stowell's authority."

VIL PROCEEDINGS OF SUCH COURTS.

§330.

District courts of the United States possess all the powers of a court
of admiralty, both instance and prize, and may award restitution of
property claimed as prize of war by a foreign captor.

Glass V. The Sloop Betsey, 3 Ball., 6.

A sentence of condemnation as prize does not establish any particu-
lar fact without which the sentence may have been rightfully pro-
nounced.

Maley v, Shattuck, 3 Cranch, 458.

The commander of a public armed vessel who unlawfully seizes a
vessel on the high seas, which is afterwards captured by a belligerent
and condemned as lawful prize, though actually neutral property, is lia-
ble to make restitution in value, with damages ; and the neutral owner
is not bound to appear and defend in the prize court in which his^
vessel is proceeded against.
Ihid.

A seizure for the breach of a municipal regulation made within the
territorial jurisdiction of the sovereign, being valid, and conferring ju-
risdiction on the sovereign, his courts may proceed to sentence, thongb
the res be lying in a port of another friendly power.

Hndson r. Guestier, 4 Crancb, 293. See Hadson v. Gaestieri 6 ihid,, 285. Supr^iy
$329.

An American vessel sailed from Naples in the year 1812 with aBritisb
license to carry her cargo to £iigland. 8he touched at Gibraltar, and,,
after leaving her deck-load, sailed thence for the United States. Learn-
ing afterwards that war had broken out between the United States and
Great Britain, she altered her course for England, was captured by the
British, carried into Cork, libeled, and acquitted upon her license*
She then sold her cargo, and, after a detention of seven mouths in Ire-
land, purchased a return cargo in Liverpool, and sailed for the United
States. She was captured by an American privateer, and both vessel
and cargo were condemned, as prize to the captors. It was held that
the capture was not abandoned, though only a prize- master was put on
board, the crew being Americans, and there being no reason to appre*
hend a rescue.

The Alexander, 8 Cranch, 169.
202

CHAP. XVL] proceedings OF PRIZE COURTS. [§ 330.

SailiDg with an iDtention to farther the views of the eDemy is suffix
cient to condemn the property, although that intention be frustrated
by capture.

The Aurora, ibid., 203.

Capture as prize of war, jura belliy overrides all previous liens.

The Frances, 8 Cranch, 418; the Hampton, 5 Wall., 372 ; the Battle, dibid., 496.

TSo lien upon enemy's property, by way of pledge for the ))ayment of
porchase-money, or otherwise, is sufficient to defeat the rights of the
captors in a prize court, unless in very peculiar cases where the ]ien
is imposed by a general law of the mercantile world, independent of
any contract between the parties.

The Frances, 8 Cranch, 418.

If a vessel be captured by a superior force and a prize-master and a
small force be put on board, it is not the duty of the master and crew
of the vessel so captured to attempt to rescue her, as they may thereby
expose the vessel to condemnation, though otherwise innocent.

Brig Short Staple v. U. S., 9 Cranch, 55.

The circumstance that a ship is found in the possession of the enemy
affords iirima/oma evidence that it is his property. But if it was orig-
inally of a friendly or neutral character, and has not been changed by
a sentence of condemnation, or by such possession as nations recognize
as firm and effectual, it will be restored absolutely or conditionally, as
each case requires.

Schooner Adeline, iMd», 944.

The test affidavit should state that the property, at the time of ship*
ment and capture, did belong, and, if restored, will belong, to the
claimant. If the principal is without the country, or at a great dis-
tance from the court, the claim and affidavit may be made by an agents

Ibid.

As has been already noticed, where a capture is made by a privateer
which had been illegally equipped in a neutral country, the prize courts
of such neutral country have power, and it is their duty, to restore the
captured property if brought within their jurisdiction to its owner.

Brig Alerta v. Moran, 9 Crandi, 359. Supra, i 329.

To constitute a capture some act should be done indicative of an
intention to seize and to retain as prize; and it is sufficient if such
intention is fairly to be inferred from the conduct of the captor.

The Giotins, ibid,, 368. §

Where captured goods, claimed by a neutral owner, are by consent
sold under an order of the court, and the proceeds are finally ordered
to be paid to such owner, the amount of the duties should be deducted
by the court.

Brig Concord, 9 Cranch, 387 ; the Nereide, 1 Wheat., 171.

203

§ 330.] VISIT, 8EABCH, AND CAPTURE. [CHAP. XVI

The captors of a neatral ship, laden in part with enemy's property,
are vesponsible only for the freight on the property condemned, and not
for the whole freight.

The Antoaia Johanna, 1 Wheat., 159.

>In prize questions the Supreme Oonrt has appellate jurisdiction only.

The Harrison, ilnd., 298.

It is a general rule in prize causes that the decision should be prompt,
and should be made, unless some good reason for departing from the rule
'exist, on the papers and testimony afforded by the captured vessel, or
which can be invoked from the papers of other vessels in possession of
the court. But in cases of joint and collusive capture, the usual sim-
plicity of the prize proceedings is necessarily departed from ; and where,
in these cases, there is the least doubt, other evidence may be resorted
to.

The George, iUd„ 408.

It is the duty of neutrals to put on board of their ships sufELcient
papers to show the real character of the property ; and, if false or col-
orable documents are used, the necessity or reasonableness of the ex-
"Cuse ought to be very clear and unequivocal to induce a court of prize
to rest satisfied with it.

The Dos Hermanos, 2 Wheat., 76.

Claimants of property which is liable to condemnation cannot liti-
gate the question of the captor's commission. They have no standing
before the conjrt to assert the rights of the United States. If the cap^
ure was without a commission, the condemnation must be to the United
States generally; if with a commission as a national vessel, it must still
be to the United States, but the proceeds are to be distributed by the
court among the captors according to law.
Ibid.

If a party attempt to impose on the court by knowingly or fraudu-
lently claiming as his own property belonging in part to others, he
4shall not be entitled to restitution of that portion which he may ulti-
mately establish as his own.

Ibid.

It is the duty of the captors, as ^oon as practicable, to bring tiie
chip's papers into the registry of the district court, and to have the ex-
aminations of the principal officers and seamen of the captured ship
taken upon the standing interrogatories.

IVxd, ; the Pizarro, 2 Wheat., 227.

It is exclusively upon these papers and the examinations that the
cause is to be heard before the district court. If, from the whole evi-
•deuce, the property clearly appear to be hostile or neutral, condemna-

204

CHAP. XVL] proceedings OF PRIZE COURTS. [§ 330.

tioo or acquittal immediately follows. If the property appear doabtfal^
or the case be cloaded with suspicions or inconsistencies, further proof
maj, in the discretion of the court, be taken. If the parties have been-
guilty of gross fraud or misconduct, or illegality, further proof is not
aUowed, and the parties are visited with all the fatal consequences of
an original hostile character

Ibid.

In prize causes the evidence to acquit or condemn must come, in
the first instance, from the papers and crew of the captured ship.

The Dos Hermanos, 2 Wheat., 76.

Where an enemy's vessel was captured by a private armed vesse>
of the United States, and subsequently dispossessed by force or terror
of another vessel of the United States, the prize was, under the circum-
Btanoes of the case, adjudged to the first captor, with costs and dam^-

agee.

The Mary, ibid., 123.

In a case of grave doubt as to whether the capture was collusive,,
the court adjudged the vessel to the captors.

The Bothnia and the Jahnstoff, iM., 169.

Gonoeaiment or even spoliation of papers is not of itself a sufficient^
ground for condemnation in a prize court; but it is a material circum-
Btanoe calculated to excite the vigilance and justify the suspicions of the-
court, though it is open to explanation.

The PisazTO, ibid., 227.

Under the Spanish treaty of 1795, stipulating that free ships shall
nake free goods, the want of such a sea-letter, pas8i>ort, or such certifi-
^tes as are described in the 17th article of the treaty, is not a sub-
BtanUve ground of condemnation. It only authorizes capture and send-
^S iu for adjudication, and the proprietary interest in the ship may be
proven by other equivalent testimony. The Spanish character of the
^P being ascertained, the proprietary interest of the cargo cannot be
paired into, onless so far as to ascertain that it does not belong to-
cttizeuBof the United States, whose property, engaged in trade ^ith
the enemy, is not protected by the treaty. .

In a suit by the owners of captured property, lost through the fault
^^ oegiigence of the captors, the value of the captured vessel, and the*
Pnme cost of the cargo, with all charges, and the premium of insur-
^^^ were allowed in ascertaining the damages.

The Aima Maria, 2 Wheat., 327.

^eie a captoxe has actually taken place with the assent of the com-
^oder of a squadron, express or implied, the question of liability

205

§ 330.] VISIT, SEARCH, AND CAPTUEE. [CHAP. XVL

sumes a different aspect, and the prize-master may be considered as
bailee to the use of the whole squadron who are to share in the prize
money ; but not so as to mere trespasses unattended with a conversion
to the use of the squadron.

The Eleauor, ibid., 345.

A bill of lading, consigning the goods to a neutral, but unaccompa-
nied by an invoice or letter of advice, is not a sufficient evidence to en-
title the claimant to restitution, but affords a ground for the introduc-
tion of further proof. The fact of invoices and letters of advice not
being found on board may induce a suspicion that papers have been
spoliated. But even if it were proved that an enemy master carrying
a cargo chiefly hostile, had thrown papers overboard, a neutral claim-
ant to whom no fraud is imputable ought not thereby to be precluded
from further proof.

The Friendschaft, 3 Wheat., 14.

A vessel recaptured from the enemy after condemnation must be con-
demned as enemies' property, and is not to be restored to the former
owner on payment of salvage. The act of June 26, 1812, sec. 5 (2 Stat.
L., 760), has not changed the law in that respect. A sentence of con-
demnation completely extinguishes the title of the original proprietor,
and transfers a complete title to the captor.

The Star, ibid., 78.

It is a relaxation of the rules of the prize court to allow time for
further proof in a case where there has been a concealment of material
papers.

The Fortana, ibid., 236.

On an illegal capture the original wrong-doers may be made re8x>on-
sible beyond the loss actually sustained in case of gross and wanton out-
rage; but the owners of the offending privateer, who are only con-
8trnctively liable, are not liable for punitive damages.

The Amiable Nancy, ibid., 546.

The f^t of a vessel having been sent into an enemy's port for abjudi-
cation, and afterwards permitted to resume her voyage, was held to
raise a violent presumption that she had a license; and, the claimant*
having produced no evidence to repel the presumption, condemnation
was pronounced.

The Langdon Cheves, 4 Wheat., 103.

In the absence of any act of Congress on the subject, the courts of the
United States would have authority, under the general law of nations,
to decree restitution of property captured in violation of their neutral-
ity, under a commission issued within the United States, or under an

206

<;HAP. XVI.] PROCEEDINGS OF PRIZE COURTS. [§ 330.

armament, or augmentation of the armament or crew of the capturing
vesself within the same.

The Estrella. ibid., 298.

The ontu probandi of a beutral interest rests on the claimant ; but the
evidence to acquit or condemn shall, in the first instance, come from the
chip's papers and persons on board. If the neutrality of the property
is Dot established finally beyond a reasonable doubt, condemnation en-
sues. The assertion of a false claim, in whole or in part, by an agent
4)f, or in connivance with, the real owners, leads to condemnation.

The Amiable IsaheUa, 6 Wheat., 1, 78.

The commission of a public ship, signed by the proper authorities of
the nation to which she belongs, is complete proof of her national char-
acter; and the courts of a foreign country will not inquire into the
means by which the title to the property has been acquired.

The Santissima Trinidad, 7 Wheat., 283.

Where a capture is made by captors acting under the commission of
fk foreign country, such capture gives them a right which no other na-
tion neutral to them has a right to impugn, unless for the purpose of
vindicating its own violated neutrality.

La Nereyda. 8 Wheat.. 108.

Whoever sets up a title under condemnation is bound to show that
the court had jurisdiction of the cause ; and that the sentence has been
pronounced upon the application of parties competent to ask for it.
iHd,

If property has been wrongfully brought into the United States, and
the doty paid by a wrongful captor, and a decree of restitution is made
After a sale, the captor is liable on such a decree only for the balance,
^thoQt interest, after deducting the amount paid as duties.

The Santa Maria, 10 Wheat.. 431.

lo every case of a proceeding for condemnation upon captures made
by the public ships-of-war of the United States, whether the same be
^^>^of prize strictly ji/r^ belli^ or upon public acts in the nature of capt-
^^ jure bellij the proceedings are in the name and authority of the
United States.

The Palmyra, 12 Wheat., 1.

Prize proceedings should be in the name of the United States ; but
if conducted in the name of the captors until the Supreme Court is
'^^ched, they will not be reversed on that ground.

Jeckerv. Montgomery, 18 How., 110.

Prize courts properly deny damages or costs where there has been
t^bable cause for seizure. Probable cause exists where there are cir-

207

§ 330.] VISIT, SEARCH, AND CAPTURE. [CHAP. XVL-

cumstances safficient to warrant saspicion, though not safficient to.
warrant condemnation.

The Thompson, 3 Wall., 155.

Causes of prize are usually heard, in the first instance, upon the
papers found on board the vessel, and the examination taken inprepa-
ratorio; and It is in tbe discretion of the court to order further proof.
The prima facie effect of a bill of lading being to vest the ownership of
the goo^s in the consignee named in it, where the consignee so named
is an enemy the goods are prima fade liable to condemnation. Capture
at sea of enemy's property clothes the captors with all the rights of
the owner at the commencement of the voyage ; and no lien created
after the capture, or after the commencement of the voyage, can de-
prive the captors of their rights.

The Sally Magee, ibid., 451.

Frankness and truth are especially required of the officers of capt-
ured vessels when examined in preparation for the first hearing in*
prize.

The Springbok, 5 Wall., 1. See infra, % 308.

When a vessel is liable to condemnation, the first presumption is that
the cargo is in the same situation.

The Sally Magee, 3 Wall., 451.

Segularly, in cases of prize, no evidence is admissible on the first
hearing, except that which comes from the ship's papers or the testi-
mony of persons found on board. If, upon this evidence, the case is not
sufficiently clear to warrant condemnation or restitution, opportunity ia
given by the court, either of its own accord or on motion and proper
grounds shown, to introduce additional evidence under an order for
further proof. If, preparatory to the first hearing, testimony was taken
of persons not in any way connected with the ship, such evidence is
properly excluded, and the hearing takes place on the proper proofs.

The Sir William Peel, 5 WaU., 517.

A ship or cargo is not exempt from condemnation in a prize court,
because it was captured in neutral waters. Such a capture might con-
stitute a ground of claim by the neutral power, whose territory bad suf-
fered violation, for apology or indemnity. But neither an enemy, nor
a neutral acting the part of an enemy, can demand restitution of capt-
ured property on the sole ground of capture in neutral waters.

lUd. See infra, % 398.

Where several witnesses stated facts tending to prove that a vessel
was in the employment of an enemy Government, and that part, at
least, of her return cargo was enemy property; but the statement uf
others made it probable that the vessel was what she professed to be, a
merchant steamer, belonging to neutrals} that her outward cargo was

208

CHAP. XVI.] PROCEEDINGS OF PRIZE COURTS. [§ 330.

consigned in good faith by neutral owners for lawfUl sale ; that the re-
tom cargo was purchased by neatrals^ and on neutral account — the
court directed restitution, without costs or expenses to either party as
against {he other.

Ihid. The Sir William Peel, ut aup.

In a case of joint capture by the Army and Navy, it was held that the
captnre inured exclusively to the benefit of the United State§| there
being no statutory provision in such a case as to prize-money.

The Siren, 13 Wall., 389.

The right of vessels of the Navy of the United States to prize-money
exists only by virtue of statute.

IHd.

"The question (in cases of condemnation of a vessel for breach of
nentrality) is as to the innocency or guilt of the vessel, as if the transac-
tion in which she was implicated was one of personal volition on her
part.'' << The most distinguished and unblemished reputation on the part
of a ship-owner will not protect his vessel from confiscation when it is
engaged, through untrustworthy agents, and without his knowledge
and against his prohibition, in illicit employments, in infraction of reve-
nue and fiscal laws, and pre-eminently in violating the laws of war."

Jodge Betts, in the case of the Napoleon, Olcntt, 208.

The legality of captures is to be decided upon competent evidence,
and no rules are more proper for determining the competency of evi-
dence than those which prevail in courts of admiralty.

1 Op., 40, Bradford, 1794. •

The master of a captured vessel, by the usage of admiralty, is a com-
P^nt witness.

IMd.

It is reasonable, as applicable to all nations, to permit a portion of a
pnze cargo to be sold under the superintendence of our public officers^
^or the necessary reparation of the prize ship. As to France, it is within
^« 19th article of the treaty of 1778.

The prize ship should be permitted to sail whenever the captors wish,
^i a deception practiced on the revenue officers, as to the goods, affords
^ gronnd for detaining it.

1 Op., 67, Lee, 1796.

''^e profits of a capture made by individuals acting without a com-
mon, inure to the Oovemment, but it has not been the practice to
^^ them. On the contrary, it has been the practice to recompense
^'^tous enterprise, courage, and patriotism, by assigning the captors
^ part, and sometimes the whole prize.

1 Op., 463, Wirt, 1821.

8. Mis. 102— VOL. in U 209

§ 330.] VISIT, SEARCH, AND CAPTURE. [CHAP. XVI.

In the case of the proceeds of the prize the Dos Hermaiios, the At-
torney-General gave an opinion, based on the facts of the case as reported
in 2 VTheaton, 77, that, in strict law, the whole of the proceeds belonged
to the United States, if they thought proper to assert their claim.

Ibid.

The Isabella having been condemned by the Supreme Court of the
United States as a British vessel falsely and fraudulently covered by
Spanish documents, and consequently held to be good prize of war (6
Wheat., 1-100), and a claim having been made by Alonzo Benigno
Munoz for reimbursement by Congress, and the Attorney- Oeneral hav-
ing been requested by the Judiciary Committee to communicate infor-
mation upon the subject, an answer was filed approving the reasons of
the action of the executive and the judiciary.

1 Op., 536, Wirt, 1822.

The 4th section of the act of 3d March, 1800, adopts the rules which
have been or might be provided by law for the distribution of prize-
money. These rules were taken from the 5th and 6th sections of the
act of the 23d of April, 1800, by which the whole of the prize is given to
the captors when the vessel captured is of equal or superior force to the
vessel making the capture; and when of inferior force, the prize is
directed to be divided equally between the United States and the cap-
tors.

I Op., 594, Wirt, 1823.

The condemnation of a vessel and cargo in a prize court is not a erim-
inal sentence, and the President cannot remit the forfeiture and restore
the property, or its proceeds, to the claimant.

10 Op., ^2, Bates, 1663.

The President may lawfully direct the releasef of prize property in
which th^ captors took no interest, it being in their possession and sab-
ject to their control.

II Op., 484, Ashton, 1866.

A Mexican vessel captured as a blockade runner in May, 1846, and
brought into New Orleans, as to which no prize proceedings had been
instituted, was, with her cargo, to be "considered as Mexican property
found in the port of New Orleans after the existence of war between the
countries."

•

Mr. Buchanan, Seo. of State, to Mr. Wagner, Jane 12, 1846. MS8. Dom. Let.

Articles on tlie law and practice of prize courts, by Prof. Bulmerincq, of Hei-
delberg, are in the Reyue de droit int., vol. 10, pp. 186, 368, 595; vol. 11,
pp. 152, 321, 561; vol. 14, pp. 114 J.

The practice in prize courts is discussed by Mr. Dana in Dana's Wheaton, $ 388^
note.

'< The Supreme Court of the United States has followed the Bnglish
rule, and has held valid the condemnation, by a' belligerent court, of
prizes carried into a neutral port and remaining there, the practice W

210

CHAP. XVI.] PROCEEDINGS OF PRIZE COURTS. [§ 330.

ing jastiliable on the groand of conreuience to belligerents as well as
neutrals ; and though the prize was in fact within neutral territory, it
wss still to be deemed under the control or sub potestate of the captor,
whose possession is considered as that of his sovereign. It may also
be remarked that the rule thus established by the highest courts of Eng-
land and the United States is sanctioned by the practice of France,
Spain, and Bolland, but several French publicists deny its legality.
' For the same reason that a prize court of the captor may condemn capt-
ured property while in a neutral port, it may condemn such property
situate in any foreign port which is in the military possession of the
captor. *As a general rule,* says Chief-Justice Taney, delivering the
opinion of the Supreme Court, ' it is the duty of the captor to bring it
within the jurisdiction of the prize court of the nation to which it be-
longs, and to institute proceedings to have it condemned. This is re-
quired by the act of Congress in ca«es of capture by ships-of-war of the
United States j and this act merely enforces the performance of a duty
imx>osed upon the captor by the law of nations, which, in all civilized
countries, secures to the captured a trial in a court of competent juris-
diction before he can be finally deprived of his property. £ut there are
cases where, from existing circumstances, the captor may be excused
from the performance of this duty, and may sell or otherwise dispose
of the property before condemnation. And where the commander of a
national ship cannot, without weakening inconveniently the force under
his command, spare a sufficient prize crew to man the captured vessel,
or where the orders of his Government prohibit him from doing so, he
may lawfully sell or otherwise dispose of the captured property in a
foreign country, and may afterwards proceed to adjudication in a court
of the United States.' Wheat. Hist. Law of Nations, 321 ; Jecker et al.
V. Montgomery, 13 How., 516 ; The Peacock, 4 Bob., 185 ; Hudson v.
Onestier, 4 Cranch, 293 ; Williams et al. v. Armoyd, 7 Cranch, 523 ; The
Arabella and Madeira, 2 Gallis, 368,- The Henric and Maria, 6 Bob., 138,
note ; the Falcon, 6 Bob., 198 ; La Dame C6cile, 6 Bob., 257."

2 HaUeck's Int. Law (Baker's ed.), 427. See as to sale of pKfses, $upra, $$ 329
ff; infra, $ 400.

The following opinion on the general principles of proceeding in
prize courts was drawn up in the form of a letter to Mr. Jay, on the
behalf and at the request of the Government of the TJnited States, by
Sir W. Scott and Sir J. Nicholl, in 1794, as follows :

*' We have the honor of transmittiDg, agreeably to your excellency's request, a
atetement of the general principles of proceeding in prize canses in British conrts of
admiralty, and of the measures proper to be taken when a ship and cargo are brought
in as prize within their Jurisdiction.

"The general principles of procc^eding cannot, in our Judgment, be stated more
correctly or succinctly than we find them laid down in the following extract from a
report made to his late Majesty in the year 1753 by Sir Q. Lee, then Judge of the pre-
rogative court; Dr. Paul, His Mi^esty's advocate-general; Sir Dudley Rider, His
If^esty's attorney-general, and Mr. Murray (afterwards Lord Mansfield), His Ma-
jesty's solicitor-general :

" ' When two powers are at war they have a right to make prizes of the ships, goods,
and effects of each other upon the high seas ; Whatever is the property of the enemy
may be acqaired by capture at sea, but the property of a friend cannot be taken, pro-
vided he observes his neutrality.

' ' ' Hence the law of nations has established :

" 'That the goods of an enemy, on board the ship of a friend may be taken.

211

§ 330.] VISIT, SEARCH, AND CAPTURE. [CHAP. XVL

'< 'That the lawful goods of a friend, ou board the ship of au enemy, ought to be re-
stored.

*' 'That contraband goods going to the enemy, though the property of a friend, may
be taken as prize ; because supplying the enemy with what enables him better to
carry ou the war is a departure from neutrality.

'"By the maritime law of nations, universally and immemorially received, there is
au established method of determination whether the capture be or be not lawftil
prize. • . ,

*' * Before the ship or goods cau be disposed of by the captor there must be a regular
Judicial proceeding, wherein both parties may be heard, and condemnation thereupon
as prize in a court of admiralty, Judging by the law of nations and treaties.

"'The proper and regular court for these condemnations is the court of that state
to whom the captor belongs.

'"The evidence to acquit or condemn, with or without costs and damages, must in
the first instance, come merely from the ship taken, viz, the papers on board and the
examination on oath of the master and other principal officers ; for which purpose
there are officers of admiralty, in all the considerable sea-ports of every maritime power
at war, to examine the captains and other principal officers of every ship brought in
as a prize upon general and impartial interrogatories ; if there do not appear from
thence ground to condemn, as enemy's property or contraband, goods going to the
enemy, there must be an acquittal, unless from the aforesaid evidence the property
shall appear so doubtful that it is reasonable to go into further proof thereof.

" 'A claim of ship or goods must be supported by the oath of somebody, at least as
to belief.

" ' The law of nations requires good faith. Therefore every ship must be provided
with complete and genuine i)aper8, and the master, at least, should be privy to the
truth of the transaction.

'"To enforce these rules, if there be false or colorable papers ; if any papers be thrown
overboard; if the master and officers examined in preparatorio grossly prevaricate ; if
proper ship's papers are not on board ; or if the master and crew cannot say whether
the ship or cargo be the property of a friend or enemy, the law of nations allows, ac-
cording to the different degrees of misbehavior or suspicion arising from the fanlt of
the ship taken and other circumstances of the case, costs to be paid, or not to be re-
ceived by the claimant, in case of acquittal and restitution. On the other hand, if »
seizure is made without probable cause, the captor is adjudged to pay costs and dam-
ages ; for which purpose all privateers are obliged to give security for their good be-
havior, and this is referred to and expressly stipulated by many treaties.

" * Though from the ship's papers and the preparatory examinations the property
does not sufficiently appear to be neutral, the claimant is often indulged with time to
Bend over affidavits to supply that defect; if he willnotshow the property, by sufficient
affidavits, to be neutral, it is presumed to belong tQ the enemy. Where the property
appears from evidence not on board the ship, the captor is Justified in bringing her in
and excused paying costs, because he is not in fanlt, or, according to the oironmatMiGea
of the case, may justly be entitled to receive his costs.

*"If the sentence of the court of admiralty is thought to be erroneous, there is in
every maritime country a superior court of review, consisting of the most oonsiderable
persons, to which the parties who think themselves aggrieved may appeal; and this
superior court judges by the same rule which governs the court of admiralty, tIb, the
law of nations and the treaties subsisting with that neutral power whose subject is
a party before them.

'"If no appeal is offered, it is an acknowledgment of the Justice of the sentence by
the parties themselves, and conclusive.

" * This manner of trial and adjudication is supported, alluded to, and enforced, by
m«ny treaties.

212

CHAP. XVI.3 PROCEEDINGS OP PRIZE COURTS. [§ 330,

'< * In this method, all captures at sea were tried, daring the last war, by Great Britain,
France, and Spain, and submitted to bj the neutral powers. In this method bj courts
of admiralty, acting according to the law of nations and particular treaties, all captures
at sea have immemorially been Judged of, in every country in Europe. Any other
method of trial would be manifestly unjust, absurd, and impracticable.'

" Such are the principles which govern the proceedings of the prize courts.

'*The following are the measures which ought to be taken by the captor and by the
neutral claimant, upon a ship and cargo being brought in as a prize : The captor,
immediately upon bringing his prize into port, sends up or delivers ux>on oath to the
legiBtry of the court of admiralty all papers found on board the captured ship. In
the conrse of a few days the examinations in preparatory of the captain and some of the
erew of the captured ship are taken, upon a set of standing interrogatories, before the
oommissioners of the port to which the prize is brought, and which are also forwarded
to the registry of the admiralty as soon as taken. A monition is extracted by the
oaptor from the registry and served upon the Royal Exchange, notifying the capture,
and calling upon all persons interested to appear and show cause why the ship and
goods should not be condemned. At the expiration of twenty days the monition is
retumed into the registry, with a certificate of its services, and if any claim has been
given, the cause is then ready for hearing upon the evidence arising out of the ship's
papers and preparatory examinations.

"The measures taken on the part of the neutral master or proprietor of the cargo
are as follows: Upon being brought into port the master usually makes a pW>teHt,
which he forwards to London, as instructions (or with such further directions as he
thinks proper), either to the correspondent of his owners or to the consul of his na-
tion, in order to claim the ship and such parts of the cargo as belong to his owners,
or with which he was particularly intrusted ; or the master himself, as soon as he has
undergone his examination, goes to London to take the necessary steps.

<*The master, correspondent, or consul applies to a proctor, who prepares a claim,
supported by an affidavit of the claimant, stating briefly to whom, as he believes, the
ship and goods claimed belong, and that no enemy has any right or interest in them.
Security must be given to the amount of sixty pounds to answer .costs, if the case
should appear so grossly fraudulent on the part of the claimant as to subject him to
be condemned therein. If the captor has neglected in the mean time to take the usual
steps (bat which seldom happens, as he is strictly enjoined both by his instructions
and by the prize act to proceed immediately to abjudication), a process issues against
him on the application of the claimant's proctor, to bring in the ship's papers and
preparatory examinations, and to proceed in the usual way.

"As soon as the claim is given, copies of the ship's papers and examinations are pro-
cored from the registry, and upon the return of the monition the cause may be heard.
It, however, seldoms happens (owing to the great pressure of business, especially at
the commencement of a war), that causes cau possibly be prepared for hearing im-
mediately npon the expiration of the time for thb return of the monition ; in that case,
each canse must necessarily take its regular turn. Correspondent measures must be
taken by the neutral master, if carried within the Jurisdiction of a vice-admiralty
court, by giving a claim supported by his affidavit, and offering a security for costs,
if (he claim should be pronounced grossly fraudulent.

"If the claimant be dissatisfied with the sentence, his proctor enters an appeal in
the registry of the court where the sentence was given, or before a notary public
(which regularly should be entered within fourteen days after the sentence), and be
afterwards applies at the registry of the lords of appeal in prize causes, which is
held at the same place as the registry of the high court of admiralty, for an instru-
ment called an inhibition, and which should be taken out within three months, if
the sentence be in the high court of admiralty, and within nine months if within a
▼ice-admiralty court', but may be taken out at later periods if a reasonable cause

213

§ 330.] VISIT, SEARCH, AND CAPTURE. fCHAP. XVI.

can be assigned for the delay that has interrened. This instmment directs the jadge,
whose senteuce is appealed from, to proceed no farther in the cause ; it directs the
registry to transmit a copy of all the proceedings of the inferior courts ; and it directs
the party who has obtained the sentence to appear before the superior tribanal to an-
swer to the appeal. On applying for this inhibition, seonrity is given on the part of
the appellant to the amonnt of two hundred pounds, to answer costs in case it should
appear to the court of appeal that the appeal Is merely vexatious. The inhibition is
to be served on the Judge, the registrar, and the adverse party and his proctor, by
showing the instrument under seal and delivering a note or copy of the contents. If
the party cannot be found, and the proctor will not accept the service, the instru-
ment is to be served viU ei modis; that is, by affixing it to the door of the last place
of residence, or by hanging it on the pillars of the Royal Exchange.

'* That part of the process above described, which is to be executed abroad, may
be performed by any person to whom it is committed, and the formal part at home is
executed by the officer of the court. A certificate of the service is indorsed upon
the back of the instrument, sworn before a surrogate of the superior court, or before
a notary public, if the service is abroad.

''If the cause be adjudged in the vice-admiralty court, it is usual, upon entering an
appeal there, to procure a copy of the proceedings, which the appellant sends over
to his correspondent in England, who carries it to a proctor ; and the same steps are
taken to procure and serve an inhibition as where the cause has been adjudged in
the hij^h court oi admiralty. But if a copy of the proceedings cannot be procured
in due time, an inhibition may be obtained by sending over a copy of the instrument
of appeal, or by writing to the correspondent an account only of the time and sub-
stance of the sentence.

'' Upon an appeal fresh evidence may be introduced, if, upon hearing the cause, the
lords of appeal shall be of opinion that the case is of such doubt as that further proof
ought to have been ordered by the court below. Further proof usually consists of
affidavits made by the asserted proprietors of the goods, in which they are sometimes
Joined by their clerks and others acquainted with the transaction, and with the real
property of the goods claimed. In corroboration of these affidavits may be annexed
original correspondence, duplicates of bills of lading, invoices, extracts from books, etc.
These papers must be proved by the affidavits of persons who can speak of their
authenticity; and, if copies or extracts, they should be collated and certified by
public notaries. The affidavits are sworn before the magistrates or others competent
to administer oaths, in the country where they are made, and authenticated by a cer-
tificate from the British consul.

''The degree of proof to be required depends upon the degree of suspicion and doubt
that belongs to the case. In cases of heavy suspicion and great importance, the court
may order what is called ' plea and proof; that is, instead of admitting affidavits and
documents, introduced by the claimants only, each party is at liberty to allege in
regular pleadings, such circumstances as may tend to acquit or condemn the capture,
and to examine witnesses in support of the allegations, to whom the adverse party may
administer Interrogatories. The depositions of the witnesses are taken in writing.
If the witnesses are to be examined abroad, a commission issues for that purpose ; but
in no case is it necessary for them to come to England. These solemn proceedings are
not often resorted to.

" Standing commissions may be sent to America for the general purpose of receiving
examinations of witnesses in all cases where the court may find it necessary for the
purposes of Justice to decree an inquiry to be conducted in that manner. .

"With respect to captures and condemnations at Martinico, which are the subjects
of another inquiry contained in your note, we can only answer, in general, that we
are not informed of the particulars of such captures and condemnations ; but as we
know of no legal court of admiralty established at Martinico, we are clearly of opin-

214

OTAP. XVI.] IMPKESSBiENT. [§ 33L

ion that tlie legality of any prizes taken there must be tried in the high court of ad*
miialty of England, npon claims given in the manner above described, by such per-
KHis as may think themselTes aggrieved by the said capture."

1 Am. St. Pap. (For. Rel.)» 494 /; imperfectly given in 2 Halleck's Int. Law
(Baker's ed.), 416/.

Vm. IMPRESSMENT,

Its history A2n> ▲BANDONMsin'.

§331.

** It will be expedient that yon take proper opportunities, in the mean
timefOf conferring with the minister on this subject (that of impress-
ment), in order to form some arrangement for the protection of our sea-
men on those occasions. We entirely reject the mode which was the
rabjectof the conversation between Mr. Morris and him, which was that
our seamen should always carry about them certificates of their citizen-
ship; this is a condition never yet submitted to by any nation ; one
^th which seamen would never have the precaution to pomply. The
casualties of their calling would expose them to the constant destruc-
tion or loss of this paper evidence, and thus the British Oovernment
▼onld be armed with legal autliority to impress the whole of our sea-
men. The simplest rule will be that the vessel being American shall
be evidence that the seamen on board her are such. If they apprehend
that onr vessels might thus become asylums for the fugitives of their
own nation from impress gangs, the number of men to be protected by
a vessel may be limited by her tonnage, and one or two officers only be
P^nnitted to enter the vessel in order to examine the numbers aboard ;
bat no press-gang shpuld be allowed ever to go on board an American
vessel till after it shall be found that there are more than their stipu-
lated namber on board, nor till after the master shall have refused to
deliver the supernumeraries (to be named by himself) to the press-officer
' ^hohas come on board for that purpose; and even then the American
^Dsnl should be called in. In order to urge a settlement of this point
^foiea new occasion may arise, it may not be amiss to draw their atten-
tion to the peculiar irritation excited on the last occasion, and the diffi-
^Ity of avoiding our making immediate reprisals on their seamen here.
^ou will be so good as to communicate to me what shall pass on this
^^^ and it may be made an article of convention to be entered into
^^ther there or here."

Hr. Jefferaon, Sec. of State, to Mr. Pinckneyf Jane 11, 1792. MSS. Inst., Min-
isters.

*You are desired to i>er8evere till you obtain a regulation to guard
^'vesaels from having their hands impressed and to inhibit the Brit-
*h navy officers from taking them under the pretext of their being
witish subjects. There appears but one practicable rule, that the ves-

213

§ 331.] VISIT AND SEAEC?. [CHAP. XVL

fiel being American shall be conclasive evidence that the hands are so,
to a certain number proportioned to her tonnage. Not more than one
or two officers should be permitted to visit a vessel."

Same %o same, May 7, 1793 ; ibid.

'^ Your information that we are not likely to obtain any protection
for our seamen in British ports, or against British officers on the high
seas, is of a serious nature indeed; it contrasts remarkably with the
multiplied applications we are receiving from the British minister here
for protection to their seamen, vessels, and property within our ports
and bays, which we are complying with, with the most exact justice.''

Same to same, June 4, 1793 ; ibid.

The report of Mr. Piokering, Sec. of State, of Feb. 28, 1797, on impressments, is

given in 1 Am. St. Pap. (For. Bel.), 761.
For letter of Mr. Pickering, Sec. of State, in reference to impressment, to Mr.

King, of June 14, 1799, see MSS. Inst., Ministers.

^^ With regard to the insult on our flag, it will readily occur that the
right of searching and stripping public vessels-of-war of their hands,
if it exists at all, must be reciprocal ; and it need not be asked whether
a British naval commander would submit to it ; neither will ours. But
if such search for and taking away of seamen were at all admissible in
practice, it should be in our favor ; because American seamen are gen-
erally on board British ships only by impressments; whereas the Brit-
ish seamen to be found in the armed vessels of the United States are
all volunteers. And you will recollect that the British Oovernment
have made a distinction between volunteer and impressed Americans,
releasing the latter when, their citizenship was proved, but detaining
the former although they had entered and taken the bounty only in
conaequeuGe of Sk previous impressment^

Mr. Pickering, Sec. of State, to Mr. King, Jan. 8, 1799. MSS. Inst., Ministers.

<<The impressment of our seamen is an injury of very serious magni-
tude which deeply affects the feelings and the honor of the nation.

^< This valuable class of men is composed of natives and foreigners
who engage voluntarily in our service.

^^ No right has been asserted to impress the natives of America. Yet
they are impressed ; they are dragged on board British ships-of- war, with
the evidence of citizenship in their hands, and forced by violence there
to serve until conclusive testimonials of their birth can be obtained.
These must, most generally, be sought for on this side the Atlantic
In the mean time acknowledged violence is practiced on a free citizen
of the United States, by compelling him to engage and to continue in
foreign service. Although the lords of the admiralty uniformly direct
their discharge on the production of this testimony, yet many must
perish unrelieved, and all are detained a considerable time in lawless
and injurious confinement. ^ • ^

216

CHAP. XVI.] IMPRESSMENT. [§33l.

"The case of British subjects, whether naturalized or not, is more
questionable, but the right even to impress them is denied. The prac-
tice of the British Government itself may certainly, in a controversy
with that Government, be relied on. The privileges it claims and exer-
cises onght to be conceded to others. To deny this would be to deny
the equality of nations, and to make it a question of power and not of
right

^^If the practice of the British Govemi^ent may be quoted, that
practice is to maintain and defend in their sea sexvice all those of any
nation who have voluntarily engaged in it, or who, according to their
laws, have become British subjects.

^^Alien seamen not British subjects engaged in our merchant service
ongljt to be equally exempt with citizens from impressments. We have
a right to engage them, and have a right to and an interest in their
persons to the extent of the service contracted to be performed.
Britain has no pretext of right to their persons or to their service. To
tear them from our possession is at the same time an insult and an in-
jnry. It is an act of violence for which there exists no palliative.^

Mr. Marshall, Sec. of State, to Mr. Kiug, Sept. 20, 1800 ; ibid.

Id a letter of Mr. Madison, Seo. of State, to Mr. Monroe, Jan. 5, 1804 (MSS.

Inst., Ministers), the claim of Great Britain, to the right of yisitation and

impressment, are discossed at large, and the claim onqnalifiedly rejected.

See 2 Am. St. Pap. (For. ReL), 130, and in same volnme, 777 ff,, a list of

American seamen impressed into British bl4ps.

^^Oa the impressment of our seamen onr remonstrances have never
been intermitted. A hope existed at one moment of an arrangement
which might have been submitted to, but it soon passed away, and the
practice, though relaxed at times in the distant seas, has been constantly
pursaed in those of our neighborhood. The grounds on which the rec-
lamations on this subject have been urged will appear in an extract
^m instructions to our minister at London now communicated."

President Jefferson, Special Message, Jan. 17, 1806.

In Mr. Madison's letter of Feb. 3, 1807, to Messrs. Monroe and Pinkney (MSS.
Inst., Ministers), it is stated that the President (Mr. Jefferson) declined
to enter into any new treaty with Great Britain which did not settle the
dispnt-ed question of impressment. See also letter of same to same of May
20, 1807. Cf. reasons given ntpra, $$ 107, 1505, for Mr. Jefferson's disap-
proval of the Monroe-Pinkney draft treaty.

For the reasons of Messrs. Pmkney and Monroe in dropping the question of
impressment from the treaty of 1807, see letter to Mr. Madison, Apr. *2*2,
1807; Monroe MSS., Dept. of State ; and see draft of private letter to Mr.
Jefferf>on, Jnne, 1807; ibid. Supra, $$ 107, 150&.

1^« retnms of British impressments reported by Mr. Madison, Seo. of State,
on Mar. 2, 1808 (see 3 Am. St. Pap. CFor. Rel.), 36), shows that impressment
at that time had assumed such enormous dimonsions as to menace the very
existence of the United States merchant shipping.

Thecircular of Admiral Berkeley, commanding on the American waters
^ the spring of 1807, pushed the British claim of impressment to its ex-

217

$ 331.] VISIT AND SEARCH. [CHAP. XVI.

tremest limit. This circular, which bore date the 1st of Jane, 1807, and
was issued from Halifax, recited that many British seamen had deserted
the British fleet and were parading the town of ISTorfolk, protected by
the civil authorities and by their own officers, who refused to surrender
them. The several British commanders belonging to the squadron were
then ordered, in case of meeting the Chesapeake at sea, to proceed, under
this order, to search her for deserters, >^ according to the customs and
usages of civilized nations." (See supra, §§ 3156, 319.) The assump*
tion that the ^< customs and usages of civilized nations " permitted such a
search and arrest was baseless even on British showing, it having been
always conceded that a ship-of-war is part of the territory of her sover-
•eign, however strongly such extraterritoriality may have been con-
tested when applied to merchant vessels. The Chesapeake, carrying
fifty guns, was ordered to sea in April, 1807, her crew being avowedly
Americans by birth, and believed to be such by the officers, although
it subsequently appeared that among them was an Englishman, Wilson,
or Batfopd, who was alleged to be a deserter, and three colored Americans
claimed to have deserted the Melampus, a British cruiser. The Chesa-
peake, with no suspicion in her commander's breast that she was to be
overhauled, stood out to sea. In the neighborhood of Hampton Roads
the British squadron consisted of the Bellona, of seventy-four guns, the
Leopard, of fifty guns, and the Melampus, of thirty-eight guns, under
the direction of the circular of Admiral Berkeley above noticed. The
Leopard started for sea (she having been in Lynn Haven Bay) at the
same time with the Chesapeake, passing her, and standing out to sea a
few miles ahead of her. There was nothing in this companionship to
awaken suspicion in Commodore Barron, who commanded the Chesa-
peake, since the British officers of the Atlantic squadron were in the
habit of friendly intercourse with the officers of United States vessels,
often giving them packages for transport by mail or otherwise tb Eng-
land. The Leopard, stopping in her course, hailed the Chesapeake, ask-
ing to send some dispatches by her. Commodore Barron then ordered
the Chesapeake to be brought to, when he was visited by a lieuten-
ant, who handed him Admiral Berkeley's circular. Commodore Barron,
after acquainting himself with the facts, sent back an answer in which
he denied that there were any British deserters on board the Chesa-
peake, stating, also, that his orders had been to recruit no deserters,
and that, in any view, he could not permit his men to be mustered by
any but his own officers. The Chesapeake had put to sea with no con-
ception of anything but a peaceful cruise; her decks were lumbered;
her guns not arranged for action ; her crew had not had any practice with
the guns. Commodore Barron, however, put on his guard by the tone of
the demand, ordered his crew to quarters. When his reply reached the
Leopard, the Leopard's captain answered, '' Commodore Barron must
be aware that the orders of the vice-admiral must be obeyed," which
message was several times repeated. There being no response from the
Chesapeake, a shot from the Leopard was sent across her bows; this
was soon followed by a broadside, by which Commodore Barron was
wounded. He then proposed to send a boat on board the Leopard for the
purpose of inquiry. No notice was taken of this by the Leopard,, which
fired several additional broadsides, lodging twenty shot in the hull of
the Chesapeake, killing three men and wounding severely twenty others.
Bo unprepared was the Chesapeake for action that but a single gun was
fired in reply. The Chesapeake lowered her flag and surrendered, and
was then boarded by three officers of the Leopard, who mustered the crew,

218

CHAP. XVI.] IMPRESSMENT. [§331.

and after rausacking the vessel discovered tbe alleged English de-
serter, Wilson (or Eatford), in a coal-hole, while the three alleged col-
ored deserters from the Melampns were seized when among the crew.
Commodore Barron, while his vessel was in the hands of the British offi-
cer, sent a note to the captain of the Leopard saying that the Chesa-
peake was surrendered as a prize. The captainsreplied that having ful-
filled his duty his concern with the Chesapeake was over ; and he ex-
pressed his regret at the loss of life which had occurred, which, he took
the opportunity to say, might have been avoided had the Chesapeake not
objected to being overhauled. The two cruisers then went their ways.
The Leopu^ took the four alleged deserters to Halifax, where they were
tried by court-martial. Batford (or Wilson), who, it was declared, was
proved to have been a British subject, was hanged. The three colored
'^ deserters," as they were called, after a lecture from Admiral Berke-
ley on the ill effects of their conduct, were required to enlist in the
British service, as the only escape from the gallows. The Chesapeake
brought into Norfolk the news of her humiliation, and this news was
received with indignation through the whole land, an indignation on
the part of the extreme Federalists mingled with an unconcealed feeling
of disapproval of the tardiness of the Government in its naval prepara-
tions, and of the incautiousness of Commodore Barron in proceeding to
sea so ill-prepared for action. The answer to this, however, was that
an attack of such a character on a national ship was an act of lawless
atrocity which no one could expect from a civilized belligerent. But how-
ever this may be, the municipal authorities of Norfolk, backed by the
entire sense of the community, informed the British officers command-
ing the fleet who had previously been hospitably received, that they
could no longer be permitted to communicate with the shore. The
reply from Captain Douglass, who was in command, was so insolent
and menacing that Governor Cabell at once ordered the neighboring
militia to arms for the coast defense. A proclamation was issued by
the President, which, while expressing a cq^viction that the outrage
committed on the Chesapeake was without authority from the British
Government, called on them to leave the territorial waters of the
United States, syid prohibited any intercourse with them from the
shore. A cour^ martial was ordered on Commodore Barron; a hun-
dred thousand miiitia were called for, though without pay; the forti-
fications of New York, New Orleans, and Charleston were strength-
ened ; Congress was called together a month in advance of its regular
session; and instructions were immediately sent to our minister at Lon-
don to call for explanation and reparation. This message, however, was
anticipated by a report from the British admiral, on receiving which
Mr. Canning immediately disavowed the action of Admiral Berkeley,
tendered indemnity, and recalled Berkeley from his command. But
this was, very properly, not considered an adequate reparation, even
though the British Government offered to restore the men who were still
unhung, and whose American citizenship could not be disputed. The
President, however, asked for not only indemnity, but security. (See
9upra^ § 3156.) fie also called on the British Government to abandon
their claim to impressment. This they declined to do, insisting on the
position which Sir Robert Phillimore, one of the mOvSt eminent of Eng-
lish publicists, has lately declared to be untenable, that British cruisers
had a right to search American ships of all kinds. They also resented
the Piesident's proclamation excluding British cruisers from the ports
of the United States, which they insisted was in conflict with Jay's

219

§ 331.] VISIT AND SEARCH. [CHAP. XVI.

treaty. They issued a royal proclamation calling on all British sailors
on board foreign vessels, whether armed or otherwise, to leave such
vessels, and the right of impressment on merchant vessels was again
claimed. The commanders of British cruisers, also, were authorized to
call upon the commanders of foreign ships-of-war to deliver up any Brit-
ish seamen on board of them, and if this be refused to report the
facts to the British admiralty. The Government of the United States re-
fusing to accept indemnity for the Chesapeake outrage on such a basis
as this, the British ministry sent as envoy to the United States Mr.
Bose, with special powers of negotiation. Mr. Canning, however, clogged
the negotiation by declaring simultaneously to Messrs. Monroe and
Pinkney, the American ministers in London, that he would not agree to
negotiate again on the basis of the treaty which had been negotiated by
them, since he was not willing to give his approval to the doctrine that
a Government could repudiate a treaty entered into by its authorized
envoys. {Supra, § 315&.) Mr. Madison, in view of the fact that even in
England, where the sole power of negotiation of treaties was in the
Crown, it had never been disputed that the Crown could repudiate
treaties negotiated by its ministers in departure from their instruc-
tions, declined to regard this criticism as valid. The consequence was
a continuance, on the part of Great Britain, of that arrogant assump-
tion of mastership of the seas, and of contemptuous disregard of the
rights and feelings of American negotiators, which culminated in the
war of 1812. (See for character of negotiations, supra, § 107.) The only
question now open is whether it would not have been better to have de-
clared war when, after the attack on the Chesapeake, the British Gov-
ernment declined to absolutely surrender the claim of right to call on
United States ships-of-war to deliver ui> seamen claimed to be of British
descent. But we were not then prepared for war ; and if war had then
been declared there would have been little likelihood of that gallant re-
sistance on sea which four years' preparation secured. (Supray § 3156.)

In a report made to the House of Representatives on November 17,
1807, by a committee to whom the subject w^fcs referred, we have the
following :

" That the Leopard, shortly after this answer (of Commodore Barron
that he knew of no British deserters on his ship, and refusing to permit
his crew to be mustered except under his orders) was received by her
commander, ranged alongside of the Chesapeake and commenced a
heavy fire on her.

^^ That when the attack upon the Chesapeake commenced, some of
her guns were not securely fitted in their carriages ; some of her sponges
and wads were too large ; but few of her powder-horns were filled ; her
matches were not primed; some of her rammers were not in their
proper places; her marines were not supplied with cartridges enough,
whiie those they had were not of the proper size, and she was otherwise
unprepared lor action.

<^ That the Chesapeake made no resistance whatever, but remaiueil
under the incessant fire of the Leopard from twenty to thirty minutes,
when, having sufiered much damage in her hull,.rigging, and spars, and
lost three men killed and eighteen wounded. Commodore Barron ordered
his cblors to be struck, and they were struck, he says in his log-book,
after firing one gun ; but the court of inquiry lately held upon his con-
duct say before a single gun of any kind was fired from her. • • •
"That it has been incontestably proven, as the accompanying printed
document Ko. 8 will show, that William Ware, John Strahan, and Dan-

220

CHAP. XVI.] IBiPRESSMENT. [§ 331.

iel Martin are citizens of. the United States, and the two former natives
of the State of Maryland ; bat they conceive it unnecessary for them or
for this House to go into any inquiry upon that part of the subject, as,
in their opinion, whether the men taken from the Ghesapeakewere or
vere not citizens of the United States, and whether the Chesapeake
va8 or was not within the acknowledged limits of the United States at
the time they were taken, the character of the act of taking them remains
the same.

"From the foregoing facts, it appears to your committee that the out-
rage committed on the frigate Chesapeake has been stamped with cir-
camstances of indignity and insult of which there is scarcely to be found
a parallel in the history of civilized nations, and requires only the sanc-
tion of the Government under color of whose authority it was perpe-
trated to make it just cause of, if not an irresistible call for, instant and
severe retaliation."
The following resolution was proposed as a provisional measure :
^^Resolvedj That the attack of the British ship-of war Leopard, on the
United States frigate Chesapeake was a flagrant violation of the juris-
diction of the United States; and that the continuance of the British
fiqaadroQ (of which the Leopard was one) in their waters, after being
notified of the proclamation of the President of the CTnited States
ordering them to depart from the same, was a further violation thereof.^

3 Am. St. Pap., 6. See as to this caee farther, $$ 315(, 319.

The court of inquiry on the conduct of Commodore Barron reported
ft series of conclusions, among which is the following:

"The court is of opinion that the neglect of Commodore Barron to
prepare his ship for action under such circumstances, is a direct breach
of the fourth article of the rules and regulations for the government
of the Navy of the United States, adopted by an act of the Congress
of the United States, passed on the 23d day of April, 1800, entitled 'An
ftotforthe better government of the Navy of the United States.'

'4t appears to the court that after the British officer left the Chesa-
P^ke, bearing a positive refusal from Commodore Barron to the de-
mand which had been made by Captain Humphreys, and after Commo-
<lore Barron was liimself satisfied that an attack upon his ship would
^made, he did not take prompt, necessary, and efficient means to pre-
P^ his ship for battle. That his first order was merely to clear his
pQdeek, and the second, given after the lapse of some time, was to get
Us men to quarters secretly, without beat of drum ; although, with such
fterewas he had on board, and in such a situation as the ship then was,
it was not to be expected that such orders could be eflfectually accom-
plished.

"It appears to the court that the conduct of Commodore Barron
goring the attack of the Leopard, manifested great indecision and a
disposition to negotiate, rather than a determination bravely to defend
^18 ship; that he repeatedly hailed the Leopard during her attack upon
'^l that he drew his men from their guns to lower down boats to send
on hoard the attacking ship; and that he ordered his first lieutenant
^ni his quarters during the attack to carry a message on board the
^pard at that time firing upon him.

'^It appears to the court that during the attack Commodore Barron

^^ language, in the presence of his men, calculated to dispirit his

^^ by ordering them to keep down, that they would all be cat to
pieces.

221

§ 331.] VISIT AND SEARCH. [CHAP. XVI.

" It appears to the court that Commodore Barron ordered the colors
of the Chesapeake to be struck and they were struck before a single gun
of any kind was fired from her, and that at the time they were so struck
her main-deck battery was in a situation which would have enabled the
return of a broadside in a very short time.

*' The court is therefore of opinion that the Chesapeake was prema-
turely surrendered at a time when she was nearly prepared for battle,
and when the injuries sustained either in the ship or crew did not make
such a surrender then necessary ; and that for this Commodore B:irron
falls under a part of the sixth article of the rules and regulations for
the government of the Navy of the United States, adopted by an act
of the Congress of the United States, passed on the 23d day of Aprils
1800, entitled, *An act for the better government of the Navy of the
United States.'

^^ The court is of opinion, that although the conduct of Commodore
Barron, before and during the attack of the Ijeopard, evinced great
inattention to his duty and want of decision, yet that, during that attack,
he exposed his person, and did not manifest, either by his orders or ac-
tions, any personal fear or want of courage.

<'It appears to the court, that although the Chesapeake might and
ought to have been better defended than she was, yet that she was not
in a situation, at the time of the attack made upon her, to have enabled
so gallant a defense being made as might be expected. Some of her
guns were not securely fitted in their carriages, some of her sponges
and wads were too large, but few of her powder-horns were filled, her
matches were not primed, some of her rammers were not in their proper
places, her marines were neither supplied with enough cartridges nor
were those of which they had of the proper size. None of these circnm-
stances, however, could have influenced Commodore Barron in striking
his colors, because they were not known to him at the time.

^^ The court is of opinion, that the conduct of all the other officers of
the ship, except those whose duty it was to have remedied the deficien-
cies before stated, and of the crew generally, was proper, commendable,
and honorable.'^

3 Am. St. Pap. (For< Rel.)i 22.

Mr. G. H. Hose, sent by the British minister to the United States in
December, 1807, to tender such redress for the attack on the Chesa-
peake as would be proper, was instructed to limit his mission to the
case of the Chesapeake, involving, as Mr. Canning insisted, simply the
question of impressing from national ships, and to decline to discusseven
this question while the President's proclamation of July 2, 1807, was in
force. Mr. Madison answered that the President's proclamation was
not caused by the outrage on the Chesapeake alone, but by the general
claim of British ships in American waters to impress from American
ships of all classes, and that the claim to impress from national ships
could not be severed from the general claim.

See fall correspondence in 3 Am. St. Pap. (For. Rel. ), 213 ff. For general notice
of negotiation, see supra, $( 107, 150 h; and as to the attack on the Chesa-
peake in other relations, see supra, $ $ 315 5, 319.

The correspondence with the British Government in reference to the
outrage on the Chesapeake is given at large in 3 Am. St. Pap. (For. Bel.),
30. As there was no distinctive principle of international law enun-

222

CHAP, xvl] impressment. [§ 331.

ciated by our Government in the correspondence beyond that of the
inadmissibility of the British claim to impressment, and as the inviola-
bility of ships-of-war was conceded by the British d^overnment, it is un-
necessary here to do more than to state these points in the present con-
densed shape.

The correspoodeuce between Mr. Monroey^ninisterat London, and Mr. Canning,
foreign secretary, in reference to the ontrage on the Chesapeake, is given
in 3 Am. St. Pap. (For. Bel.) 166/. See al8o6 Wait's St. Pap.. 5/, 51, 86,
124.

The main points of this correspondence are stated aupra^ $ Zlbh. The personal
relations of the British negotiators at Washington to the Administration
are discussed supra, $$84, 107/.

It was stated by Mr. Monroe, Sec. of State, July 16, 1811, to Mr. Foster, British
minister at Washington, that ''no order had been given by the Oovemment
for the recovery by force of any citizen so impressed (from American ves-
sels) from any British ship-of-war." This statement was repeated by Mr.
Monroe in a note of Sept. 14, 1811.

For President Madison's message of July 6, 1812, with papers on impressments^
see 3 Am. St. Pap. (For. Rel.), 573.

Ab to impressment, see Mr. Crawford to Mr. Clay, June 10, 1814. Colton's Cor-
respondence of Clay, 34 /.

** Peace having happily taken place between the United States and
Great Britain, it is desirable to guard against incidents which, daring
periods of war in Europe, might tend to interrupt it ; and, it is believed,
in particolar, that the navigation of American vessels exclusively by
American seamen, either natives or such as are already naturalized,
would not only conduce to the attainment of that object, but also to
increase the number of our seamen, and consequently to render our
commerce and navigation independent of the service of foreigners, who
might be recalled by their Qovernments under circumstances the most
inoonvenient to the United States. I recommend the subject, therefore,
to the consideration, of Congress ; and in deciding upon it, I am per-
soaded that they will sufficiently estimate the policy of manifesting to-
the world a desire on all occasions to cultivate harmony with other
nations by any reasonable accommodations which do not impair the
enjoyment of any of the essential rights of a free and independent peo-
Pi^ The example on the part of the American Government will merit,
and may be expected to receive, a reciprocal attention from all the
friendly powers of Europe."

Httsage of President Madison, Feb. 25, 1815. 9 Wait's St. Pap., 43d.

^^ I sincerely congratulate you on the peace, and more especially on
^ fclat with which the war was closed. The affair of New Orleans was
fr^nght with useful lessons to ourselves, our enemies, and our friends,
*fidwill powerfully influence our future relations with the nations of
Europe. It will show them we mean to take no part in their wars, and
^'mt no odds when engaged in our own. I presume that having spared
^ the pride of England her formal acknowledgment of the atrocity of
^JJ^preasment in an article of the treaty, she will concur in a convention.

§ 331.] VISIT AND SEARCH. [CHAP. XVL

for relinqaishiDg it. Without this she must understand that the pres-
ent is but a truce, determinable on the first act of impressment of an
American citizen committed by an officer of hers. Would it not be
better that this convention should be a separate act, unconnected with
any treaty of commerce, and made an indispensable preliminary to any
other treaty. If blended with & treaty of commerce she will make it the
price of injurious concessions. Indeed, we are infinitely better without
such treaties with any nation. We cannot too distinctly detach our*
selves from the European system, which is essentially belligerent, nor
too sedulously cultivate an American system, essentially pacific. But
if we go into commeroial treaties at all, they should be with all at the
same time with whom we have important commercial relations. France,
Spain^ Portugal, Holland, Denmark, Sweden, Russia, all should pro-
ceed pari pa^su. Our ministers, marching in phalanx on the same line,
and intercommunicating freely, each will be supported by the weight oi
the whole mass, and the facility with which the other nations will agree
to equal terms of intercourse will discountenance the selfish higglings
of England, or justify our rejection of them. Perhaps, with all of them,
it would be best to have but the single article gentis amicissimcB^ leav-
ing everything else to the usages and courtesies of civilized nations."

Mr. Jefferson to President Madison, Mar. 23, 1815. 6 Jeff. Works, 453.

" I see by several pa])ers that a very unfair play is going on with re-
spect to the unpublished residue of the dispatches from Ghent. It is
given out that the suppression was the act of the Bepublicans in the
Senate, and that an article prohibiting impressment was rejected by the
British commissioners in a manner involving an abandonment of the
American doctrine. The fact is, that the vote against publication was
founded on the report of Mr. King, etc., and that the rejection of the
American propositions as to impressment was followed by a protest,
leutralizing at least the proceeding on that subject."

Mr. Madison, President, to Mr. Monroe, Seo. of State (unofficial), Apr. 4, 1815.
Monroe Papers, Dept. of State.

"If they (the British Government) refuse to settle it (impressment),
the first American impressed should be a declaration of war. The de-
predations on our merchants I would bear with great patience, as it is
their desire. They make themselves whole by insurances, very much
done in England. If the consequently increased price falls on the con-
sumer, it still costs him less than a war, and still operates as a premium
to our own manufactures. The other point, therefore, being settled, I
should be slow to wrath on this.''

Mr. Jefferson to Mr. Monroe, Sec. of State, Jnly 15, 1815; ibid,

''The permanency of peace between the two countries is utterly in-
compatible with the assumption of the practice of impressing seamen
from our vessels on the high seas."

Mr. Adams, Sec. of State, to Messrs. Gallatin and Bosh, Not. 2, 1818.

The negotiations of 1818 in reference to impressment are given in the Brit, and

For. St. Pap. for 1818, vol. 6, 626/. ; ibid., 1826-^, vol. 14, 831,832.
For discnssion in 1818 between Mr. Bosh and Lord Castlereaghon this snbjaot,

see Bnsh's BecoUections, 3d ed., 302/., 307, 383.

224

CHAP. XVI.] IMPRESSMENT. [§331.

By a proclamation issued on October 17, 1822, the British Govern-
ment expressly disavowed the claim of searching neutral national ves-
sels for deserters.

See Mr. Caimmg's statement to Messrs. Monroe and Pinkne^, Oct. 90, 1807.
3 Am. St. Pap. (For. Bel.), 197. Mr Canning to Mr. Monroe, Sept. 23, 1807 ;
tMd.,200.

While the United States Oovemment declines to further press on
&eat Britain the express abandonment of all claims to impressment, it
is QDderstood that the United States Oovemment will continue to re-
sist any attempts by the British Oovemment to impress sailors from
vessels sailing under the flag of the United States.

Mr. Clay, Sec. of State, to Mr. Gallatin, Jnne 21, 1826. M8S. Inst. Ministers,
As to a ease of impressment in 1826, explained by the British Govemment, see

Mr. Clay, Seo. of State, to Mr. Vanghan, Ang. 15, 1827, Ang. 80, 1827. M8S.

Notes, For. Leg. Mr. Clay to Mr. Vanghan, Dec. 6, 1828 ; ihid. Same to

same, Dec 11, 1828.

In reference to certain alleged instances of impressment in 1828, Mr.
Cbj, Secretary of State, in a letter of January 26, 1829, to Mr. Barbour,
minister to England, said : ^' If these proceedings have had the sanction
of the British Oovemment, you will inform it that the American Oov-
ernnieot cannot tolerate them ; that, if persisted in, they will be opposed
by the United States, and that the British Oovemment must be answer-
sble for all the consequences, whatever they may be, which may flow
tern perserverance in a practice utterly irreconcilable with the sover-
6ip rights of the United States^ If those proceedings have taken place
^thoat the sanction of the British Oovemment you will demand the
poniahment of the several British naval officers at whose instance they
ooeoned, and the immediate adoption of efficacious measures to guard
the navigation of the United States against the occurrence of similar
irregularities."

As to certain eases of impressment snbseqnent to the Treaty of Ghent, see Honse
Doc 446, 19th Cong., 2d sess. 6 Am. St. Pap. (For. Eel.), 366.

'^The pretension set up by the British commander of his right to in-
terfere " [in impressing from a United States vessel] '^ because the sea-
men claimed to be British is altogether inadmissible. It is understood
that, in time of peace, British seamen are free, under their own laws, to
f^K^;eiIl the foreign merchant service; but if it were otherwise, and
^*nch service were forbidden by the laws of England, it can never be
^tted that the commander of a British shipof-war has authority to
^oroe the municipal law of Oreat Britain on board a foreign vessel,

^ within a foreign jurisdiction."

Mr. Forsyth, Sec. of State, to Mr. Vail, Jnly 31, 1834. MSS. Inst., 6r. Brit.

Seamen on board vessels of the United States are protected by their
%trf)m impr&sment, whether in foreign ports or on the high seas.

Mr. Fonytb, Sec. of State, to Mr. Stevenson, Jan. 20, 1837 ; ibid,

8. Mis, 162— VOL. ra ^15 226

$ 331.] VISIT AND SEARCH. [CHAP. XVL

" The American Government, then, is prepared to say that the prac-
tice of impressing seamen from American vessels cannot be %^lowed to
take place. That practice is founded on principles which it does not
recognize, and is invariably attended by consequences so unjust, so in-
jurious, and of such formidable magnitude as cannot be submitted to.''

Mr. Webster, Sec. of State, to Lord Ashburton, Aug. 8, 1842. MSS. Notes, Or.
Brit.

<< The impressment Of seamen from merchant vessels of this country
by British cruisers, although not practiced in time of peace, and there-
fore not at present a productive cause of difference and irritation, has^
nevertheless, hitherto been so prominent a topic of controversy, and is
so likely to bring on renewed contentions at the first breaking out of s^
European war, that it has been thought the part of wisdom now to take
it into serious and earnest consideration. The letter from the Secretary
of State to the British minister explains the grounds which the Gov-
ernment has assumed and the principles which it means to uphold. For
the defense df these grounds and the maintenance of these principles,
the most perfect reliance is placed on the intelligence of the American
people, and on their firmness and patriotism, in whatever touches the
honor of the country, or its great and essential interest."

President Tyler's message, transmitting the Treaty of Washington to the Senate,
Aag. 11, 1842. 6 Webster's Works, .%0.

The protection given by a national flag to persons sailing under it
ceases when such persons leave the ship and go on the shores of a neutral
sovereign who directs their surrender.

Mr. Seward, Sec. of State, to Mr. McMath, Apr. 28, 1862. MSS. lost.. Barb.
Powers.

Mr. Kingj at the close of his mission to England, in 1804, entered into
an informal agreement with Lord St. Vincent, first lord of the admiralty,
that neither nation should for the period of five years take seamen from
the ships of the other on the high seas. When, however, this agreement
was submitted to the ministry, it was returned with the qualification that
it should not apply to the seas immediately washing Great Britain,
which, it was alleged, had always been considered under British domin-
ion. As this, in Mr. King's opinion, would be an admission of the right
of impressment in those waters, he gave up the project entire.

5 Hildreth's Hist. U. S., 536.

By Gouverneur Morris the surrender to the British Government of impressment
was urged, as his life by Sparks shows, with much persistency. B«t as ta
how far Gouverneur Morris, after his abandonment of his French mission^
became a representative of the British Government, see 1 J. Q. Adams'^
Mem., 149, 209.

,The claim of right by British men-of-war to search American vessels
for British seamen, and to impress them when so found, though one o^
the causes of the war of 1812, was not formally surrendered by th^i?
Treaty of Ghent. The Government of the United States did not insists
on such surrender as a sine qua non. The instructions by the Secretary

226

CHAP. XVI.] IMPRESSMENT. [§ 331.

of State of October 4, 1814, wheu the fall of Napoleon left this country
the sole power with whom Great Britain was at war, gave the commis-
«ioBer8 anthority ^< should yon find it impracticable to make an arrange-
ment more conformable to the instrnctions originally given, to agree to
the status quo ante beUum as the basis of negotiation." It was added,
however, after a clause guarding the fisheries, ^'nor is anything to be
done which would give a sanction to the British claim of impressment
ouboard our vessels." (MSS. Dept. of State, cited in Mr. J. C. B. Davis's
^otes on Treaties, 99.) The treaty as executed contained no provision
on the subject ; but the claim was never afterwards asserted or exercised
by Great Britain.

^* Rush, according to his instruction, made two successive proposals
to the British Gk>vemment upon impressment — one the 18th of April
and the other the 20th of June last. The first was to restrict recipro-
cally the naturalization of sailors, the other was totally to exclude
each other's seamen from the respective service, whether in public or
in merchant vessels, with a positive stipulation against the impressment
of men in any case. The British Government, in the first instance, re-
jected both, but afterwards, on' the Idth of August, Gastlereagh inti-
mated to Bush, as a suggestion of his own, upon which he had uot con-
sulted the other members of the Cabinet, that the second proposition
Qiight be accepted with two modifications : one, that either party may
withdraw from the engagement of the stipulation after three or six
months' notice, as in the agreement concerning armaments on the lakes ;
the other, that if a British officer, after entering an American vessel
for purposes admitted to be lawful, should find a seaman there whom
he should suspect to be English, he should be authorized to make a
record or process verbal of the fact, that it may be brought to the knowl-
<Hlge of the American Government, though not to take the man. The
deliberation of this day was whether Messrs. Gallatin and Rush should
he instmcted to agree to these modifications or not. Strong objections
vere urged against them both, particularly by Mr. Calhoun. Mr. Craw-
ford inclined to accede to them both, and the President (Monroe) in-
<^Ded to the same. Mr. Wirt, without expressing himself very decid-
^y, thought like the President. My own greatest objections were
against the proposal as made by ourselves, to which I have always been
utterly averse, thinking it an illiberal engagement. • • • As, how-
ever, we made the proposal, we- must abide by it, if accepted ; but its
0^ character may jnstly make us scrupulous against accepting any
OMxlifications which render it still more exceptionable." • • • On
the next day " the question upon Lord Castlereagh's proposed modifi-
<^tion8 to our proposal for abolishing impressment on the high seas was
*J^ain resumed and argued with much earnestness, Crawford and Wirt
adhering to their opinions, Calhoun and I to ours. The President ulti-
Jiately found a middle term, upon which he concluded, after expressing
"^siegret that he was obliged to decide between us, equally divided in
^pinion as we were. He determined to reject the second modification ;
"jst, because it implied that the boarding officer should have the power
^f Plastering the men of an American vessel and passing them indi-
^nually under his inspection ; and, secondly, because it implied a sus-
1^'cionthat we should not faithfully and sincerely carry our own laws
"'^0 execution." • • • " He was convinced that if the British Gov-
^»aent once brought themselves to contract the engagement not to
**« men from our ships, though it should be only for a year, they would
^^er resort to the practice again."

4 J. Q. Adama^B Memoin> 146 f",

227

§331.] VISIT AND SEARCH. [CHAP. XVI.

In reply to Mr. Webster's statement of August 8, 1842, that ^^in
future in every regularly-documented American merchant ship the
crew who navigate it will find their protection in the flag which is over
them," Lord Aberdeen wrote on August 9, that ^<I have much reason
to hope that a satisfactory arrangement respecting it (the impressment
question) may be made, so as to set at rest all apprehension and
anxiety."

2 Curtis' Life of Webster, 124.

As to imi^^«6smeiit of seamaoy see 2 John Ad&ms' Works, 226, 528 ; 3 Wd., 503

8 ibid., 450, 451, 453; 455, 656; 9 iMd., 312, 330 ; 10 md,, 207.
For a table of impressments see 4 Am. St. Pap. (For. BeL ), 56 /l As to impiesv

ment negotiations, see 1 IngersoU's Hist. Late War, Ist series, 30.
For an aoooont of the ease of the United States sloop-of-war Baltimore, see

Life of Picicering, 339 f.
On impressment as canse of the war of 1612, see speech of T. Pickering, 4 lA

of Pickering, 236, 242.
Seyeral papers which bear, in the correspondence of the day, on impressmi

bnt which primarily tonch on visitation, are found 9upra^ $ 327.
As is stated in a prior section (9uprai $ ^), it was conceded in 1802, by

Qnarterly Beview (Conseryative ) and the Edinburgh Bevie w (Liberal),

^e right of impressment was no longer claimed by Great Britain.

228

CHAPTER XVIL

WAB.

I CONDrnONfc AKI> DBCLARATION OF.

(1) May be limited and conditioned, $ 333.

(2) Declaration may be formally neceasary, i 334. ^

(3) Bat not practically eaientia!, $ 335.

n. HmCT OF, AS TO CIYIL BIORT8.

(1) Abrogates treaties^ $ 336.

(8) Breaks up business and suspends contracts, ) 337.
(3) Qut not traces, $ 337a.
m Appucation of, to bnxmt's propkrtt.

(1) Private property on land not nsually subject to enemy's seiiure, $ 338.

(2) Contributions may be imposed, $ 339.

(3) State movable property may be seized, $ 340.

(4) So of property in toemy's territorial waters, $ 341.

(5) Liability to aeisure of enemy's private property on higb seas under

neutral flag, $ 342.

(6) Liability of neutral property under enemy's flag, $ 343.

(7) Exceptions as to rule of seizure of enemy's property at sea, $ 344.

(8) What is a lawfbl capture of an enemy's merchant ship, $ 345.

(9) When convoys protect, $ 346.

IV. Rules of ctvilizkd wabfabb to bb obsbbvbd.

(1) Spies and their treatment, $ 347.

(2) Prisoners and their treatment.

(a) General rales, $ 34ti.

(b) Arbuthnot and Ambrister, $ 348a.
(o) Reprisals in war of 1812, i 3486.
(d) Dartmoor prisoners, $ 348o.

(0) Cases in Mexican war, $ 348d.

(3) Wanton destrnction prohibited, $ 349. i
^' Who abb entitled to belligebent bights.

(1) In foreign war authorization from sovereign generally necessary, $ 350.

(2) Insurgents are belligerents when proceeded against by open war, (

351.
^ Wbib enbmt's chabacteb is imputable to neutrals.
(1) When residing in enemy's Jurisdiction, $ 352.
(8) When leaving property at enemy's disposal, i 353.
^ Adxihistration bt conquebor.

(1) As to courts, $ 354.

(2) As to execative, J 355.

^ EXDIBQ OF WAB.

(1) By cessation of hostilities, $ 356.
(S) By treaty of peace, $ 357.

229

§ 333.] WAR: [chap. XVII*

I. CONDITIONS AND DECLARATION 0I\
(1) Mat be limited and conditioned.

§33S.
War may be conditioned on refusal of an altimatam.

See Whart. Com. Am. Law, $ 211.

There tvas no formal declaration on the part of the CTnited States in
1798-'99 of war with France, yet a quasi war, as it was called, existecl
in 1799 between the United States and France. {Supra, § 248, where this
question is examined in relation to the French spoliations before 179^.)

In February, 1799, the French frigate L'Insurgente, of forty guns,
having previously captured the United States schooner Betalia;tion, wa.8
herself captured by the United States frigate Constellation, of thirtij
guns, commanded by Commodore Truxton, who subsequently had an en-
gagement with another French frigate of fifty guns, who struck her
colors, but subsequently, in the darkness of the night, escaped witli. a
loss of one hundred and sixty men, killed and wounded. As will her^e-
after be seen, there was no declaration of war on the part of the United
States, but captures were made and prisoners exchanged.

Infrat i 335. See also Bupra^ $ 248.

As tocaptnring and exchanging French seamen in qutui war, see 8 John AAtbtna^
Works, 599, 661.

For an account of the relations of the United States and France in
1796-'97, see 3 Life of Pickering, 345 Jf, ; for an account of the mission
of Pinckney, Gerry, and Marshall, see ibid., 367jf. ; for an account of
the mission of Ellsworth, Murray, and Davie, see ibid., 392 ff.; ibid;
436 ff.; and see supra, §§ 81, 83, 85.

A ^^ quasi war" also existed on the Mississippi Valley with Spain it>
1793.

1 Am. St. Pap. (For. Rel.), 454.

^^A perfect war is where one whole nation is at war with another na^
tion, and all the members of both nations are authorized to commit bos--
tilities against all the members of the other, in every case and under^
every circumstance permitted by the generjil laws of war. An Imper-
fect war is limited as to places, persons, and things [to which the editor
adds:] Such were the limited hostilities authorized by the United States
against France in 1798. (Lawrence's Wheaton, 518.)"

Davis, J., Ct. Cls.i opinion on French spoliations, May 17, 1886.

On December 6, 1805, President Jefferson, when discussing Spanish
depredations on our territory, said : ^^ Considering that Congress aloo^
is constitutionally invested with the power of changing our condition^^
from peace to war, I have thought it my duty to await their authority:^
for using force in any degree that could be avoided, 1 have barely in- —
struoted the officers stationed in the neighborhood cf the aggressions
protect ouf citizens from violence, to patrol toithin the borders a^itually di

230

CHAP. XVII.] CONDITIONS AND DECLARATION OF. [§333.

litered to uSy and not to go out of them but when necessary to repel un
inroad or to rescue a citizen or his property, '^

See 2 Am. St. Pap. (For. Eel.)t 613.

President Madison, in a special message of June 1, 1812, after enu-
meratlDg the injuries suffered from British spoliation, said : ^^ We
behold, in fine, on the side of Great Britain, a state of wsir against the
United States ; and on the side of the United States a state of peace
towards Great Britain.''

See 3 Am. St. Pap. (For. Eel.), 407.

Hostilities between nations may be limited as to places, persons, and
things. Such hostilities are termed impeifect war, because not solemn,
and because those who are authorized to commit hostilities act under
special authority, and can go no further than warranted by their com-
missiou. Still it is public war, because it is an external contention by
force between some of the members of the two nations authorized by
the legitimate powers.

Bas r. Tingy, 4 DalL, 37, 40. See tupra, $ 248.

Congress can declare a general war, or may wage a limited war;
Umited in place, in objects, or in time. If a general war is declared,
its extent and operations are only restricted and regulated by the jus
kUi, forming a part of the law of nations ; but if a partial war is waged,
its extent and operation depend on our municipal law.

Baa V, Tingy, 4 Dall., 37.

Congress may authorize general hostilities, in which case the general
lAwsof war apply to our situation, or partial hostilities, in which case
the laws of war, so far as they actually apply to our sftuation, must be

noticed.

Tilbot V. Seeman, 1 Cranch, 1.

A civil war exists and may be prosecuted on the same footing as if
opposing the Government were foreign invaders whenever the
regular coarse of justice is interrupted by revolt, rebellion, or^insurrec-
tion, so that the courts cannot be kept open. Civil war begins by
iJisirrection against the lawful authority of the Government, and is
^«ver solemnly declared. When the party in rebellion occupy and
hold in a hostile manner a certain portion of territory ; have declared
^eir independence and cast off their allegiance; have organized
^nnies, and commenced hostilities against their former sovereign, the
world acknowledges them as belligerents, and the contest a war.

The Prize Cases, 2 Black, 635.

Aa to declaration of war, see tit/ra, i 334.

231

§ 334.] WAR. [CHAP. xvn.

(2) Declaration mat be formally neces6art.

§ 334.

'^ In the first place, I have to say that the war-making power in this
Government rests entirely with Congress ; and that the President can
authorize belligerent operations only in the cases expressly provided
for by the Constitution and the laws. By these no power is given to
the Executive to oppose an attack by one independent nation on the
possessions of another. We are bound to regard both France and
Hawaii as independent states, and equally independent, and though.
the general policy of the Government might lead it to take part with,
either in a controversy with the other, still, if this interference be an act^
of hostile force, it is not within the constitutional power of the Pres-
ident ] and still less is it within the power of any subordinate agent of
government, civil or military.''

Mr. Webster, Seo. of State, to Mr. Severanoe, Jaly 14, 1861. M8S. Inat., H&—
waii.

"This proposition, looking to a participation by the XThited States i
the existing hostilities against China, makes it proper to remind yoon
lordship that, under the Constitution of the United States, the execu-
tive branch of this Government is not the war-making power. The ex-
ercise of that great attribute of sovereignty is vested in Congress, and
the President has no authority to order aggressive hostilities to be un-
dertaken.

'< Our naval officers have the right — it is their duty, indeed — to em-
ploy the forces under their command, not only in self-defense, but for the
protection of the persons and property of our citizens when exposed to
acts of lawless outrage, and this they have done both in China and
elsewhere, and will do again when necessary. But military expedi-
tions into the Chinese territory cannot be undertaken without the au-
thority of the national legislature.''

Mr. Cass, Sec. of State, to Lord Napier, Apr. 10, 1857. MSS. Notee, Or. Brit.

" I deem it my duty once more earnestly to recommend to Congress
the pass^e of a law authorizing the President to employ the naval
force at his command for the purpose of protecting the lives and prop-
erty of American citizens passing in transit across the Panama, Nic-
aragua, and Tehuantepec routes against sudden and lawless outbreaks
and depredations. I shall not repeat the arguments employed in former
messages in support of this measure. Suffice it to say that the lives of
many of our people, and the security of vast amounts of treasure pass-
ing and repassing over one or more of these routes between the Atlan-
tic and Pacific, may be deeply involved in the action of Congress on
this subject. (As to Isthmus, see supra, S§ 287 ff.)

'^ I would also again recommend to Congress that authority be given
to the President to employ the naval force to protect American mer^

232

CHAP. XVIL] conditions AND DECLAKATION OF. [§ 334,

chant vessels, their crews and cargoes, against violent and lawless seiz-
ure and confiscation in the ports of Mexico and the Spanish-American
states, when these countries may be in a disturbed and revolutionary
eondition. The mere knowledge that such an authority had^been con-
ferred, as I have already stated, would of itself, in a great degree, pre-
Tent the evil. Neither would this require any additional appropriation
for the naval service.

''The chief objection urged against the grant of this authority is that
Congress, by conferring it, would violate the Constitution — that it would
be a transfer of the war-making, or, strictly speaking, the war-declar-
ing power to the Executive. If this were well founded it would, of
coarse, be conclusive. A very brief examination, however, will place
this objection at rest.

''Congress possess the sole and exclusive power under the Constitution
^ to declare war.' They alone can < raise and support armies,' and < pro-
vide and maintain a navy.' But after Congress shall have declared war,
and provided the force necessary to carry it on, the President, as com-
mander-in-chief of the Army and Navy, can alone employ this force in
making war against the enemy. This is the plain language, and history
proves that it was the well-known intention of the framers of the Con-
stitution.''

President Bachanan, Third ADuoal Message, 1859.

Mr. Calhonn's report, on Jane 3, 1812| on behalf of the House Committee on

Foreign Relations, recommending a declaration of war, is given in 3 Am.

St. Pap. (For. Bel.), 567; Mr. Ornndy's report, of Jan., 1813, on the war,

is in the same vol., 604.
The correspondence between the American legation at London, and Lord Wel-

lesley, British minister of foreign affairs, in 1811 and in 1812, prior to the

declaration of war, is given in 3 Am. St. Pap. (For. Bel.), 409.
The correspondence with the British Oovemment, after the declaration of war

of June 18, 1812, for the purpose of snspendlDg hostilities, is given iu 3

Am. St. Pap. (For. Bel.), 585/.

Under the seventh section of the act of 1799 (1 Stat. L., 716, repealed,
^ Rev. Stat., § 4652), France was to be deemed an enemy of the
United States in March, lV99.

Bas. V. Tingy, 4 Dall., 37, 39. See discassion of this case, 0upra, $ 248.

"By the Constitution Congress alone has the power to declare a na-
tional or foreign war. It cannot declare war against a State, or any
unmber of States, by virtue of any clause in the Constitution. The
institution confers on the President the whole executive power.- He
w bound to take care that the laws be faithfully executed. He is com-
Jnanderin-chief of the Army and Navy of the United States, and of
the militia of the several States when called into the actual service of
th^ United States. He has no power to initiate or declare a war, either
^inst a foreign nation or a domestic State, but by the acts of Con-
P^ of February 28, 1795, and 3d of March, 1807, he is authorized to

233

§ 335.] WAR. [chap. xvn.

call out the militia and use the military and naval forces of the United
States in case of invasion by foreign nations, and to sappress insnrrec-
tions against the government of a State or of the United States.

^^If a war be made by invasion of a foreign nation, the President is
not only authorized but bound to resist force by force. He does not
initiate the war, but is bound to accept the challenge without waiting
for any special legislative authority; and whether the hostile party be
a foreign invader or States organized in rebellion it is none the less a
war, although the declaration of it be ^unilateraV Lord Stowell (1
Dodson, 247) observes, 'It is not the less a war on that aceaunty for war
may exist without a declaration on either side. It is so laid down by
the best writers on the law of nations. A declaration of war by one
country only is not a mere challenge to be accepted or refused at
pleasure by the other.

''The battles of Palo Alto and Kesaca de la Palma had been fought
before the passage of the act of Congress of May 13, 1846, whiclL
recognized 'a state of tear as existing by the act of the Bq^lio of Mexico.^
This act not only provided for the future prosecution of the war, but^
was itself a vindication and ratification of the act of the President im.
accepting the challenge without a previous formal declaration of wazr
by Congress."

Orier, J. ; The Prute Cases, 2 Black, 668, Deo., 1862.

A public war, within the Constitution and the rules and articles of
war, has existed with the Seminoles since the day Congress recognized
their hostilities and appropriated money to suppress them.

3 Op., 307, Butler, 1838.

The war between the United States and Mexico was begun by a mili-
tary conflict in the disputed territory, and the act of Congress declar-
ing war was not passed until after such collision. (See 2 Twiss, Law
of Nat., 69; Abdy's Kent (1878), 172.) Supra, §§ 5S, 154.

On the subject of war without declaration see Mr. Maurice's "Hos-
tilities without Declaration of War," an abstract of the cases in which
hostilities have occurred between civilized powers prior to declaration
or warning from 1700 to 1870, and review 6f same by Professor Hol-
land, Revue de droit int., 1885, No. 6, 63-5. See also " Des Hostilities
sans declaration de guerre," by M. Ferand-Giraud, Hevue de droit
int. for 1885, No. 1, 19.

(3) BCT NOT rilACTICALLY BSSEKTiAL.

§335.

On June 23, 1798, after receiving the message of the President an-
nouncing the suspension of diplomatic intercourse with France, Con-
gress authorized the President to oflBcer and arm the '* provisional
army." On June 25, our merchant vessels were authorized to resist by
force '^ any search, restraint, or seizure " from any vessel sailing under
French colors, and to capture or recapture such vessels. On June 28|

234

CHAP. XVII.] CONDITIONS AND DECLARATION OP. [§ 335.

ihe President was anthomed to treat persons captured in sach vessels
as prisoners of war. Prisoners so taken were dnly exchanged. Supra.
K 228, 248.

^'And whereas actual hostilities have long been practiced on the
commerce of the United States by the cruisers of the French Eepublic
under the orders of its Government, which orders that Government re-
fuses to revoke or relax ; and hence it has become improper any longer
to allow the consul-general, consuls, and vice-consuls of the French
Bepal)lic above-named, or any of its consular persons or agents hereto-
fore admitted in these United States any longer to exercise their con-
solar functions; these are therefore to declare that I do no longer recog-
nize the said citizen Letombe as consul-general or consul, nor the said
citizens Bosier and Arcambal as vice-consuls, nor the said citizen Mozard
as consul of the French Republic in any part of these United States,
nor pennit them or any other consular persons or agents of the French
Bepnblic, heretofore admitted in the United States, to exercise their
functions as such ; and I do hereby wholly revoke the exequaturs here-
tifore given to them respectively and do declare them absolutely null
and void fix)m this day forward.^

Proclamation of Jnly 13« 1798. 9 John Adams's Works. 171.

" I think it clear that whatsoever misunderstanding existed between
the United States and France (from 1798 to 1800) it did not amount at
any time to open and public war. It is certain that the amicable rela-
tions of the two countries were very much disturbed ; it is certain that
the United States authorized armed resistance to French captures, and
the capture of French vessels-of-war found hovering on our coasts ; but
it is certain also, not only that there was no declaration of war on either
side, but that the United States, under all their provocations, never
aathorized general reprisals on French commerce. At the very mo-
iDent when the gentleman says war raged between the United States
and France, French citizens came into our courts, in their own names
claimed restitution for property seized by American cruisers, and ob-
tained decrees of restitution. They claimed as citizens of France, and
obtained restitution in our courts as citizens of France,'' * * • The
act of May 28, 1798, '« it is true, authorized the \ise of force, under
certain circumstances, and for certain objects, against French vessels.
Sat there may be acts of authorized force, there may be assaults, there,
"■^^V be battles, there may be captures of ships and imprisonment of
Persons, and yet no general war. Oases of this kind may occur under
thatpractice of retorsion which is justiHed, when adopted for just cause,
'?y the laws and usages of nations, and which all the writers distinguish
^^ general war." ''On the same day in which' this act was passed,
* * • Congress passed another act entitled *An act authorizing the
J resident of the United States to raise a provisional army,' and the
section declared that the President should be authorized ' in the

^^tof a declaration of tear against the United States or of actual in-
^^^^ of this territory by a foreign power, or of imminent danger of such
ww«a»j> to csinse to be enlisted ten thousand men." Mr. Webster also
attention to the fact that by the act of February 20, 1800, war

235

§ 335.] WAR. [chap, xvil

was still spoken of as a fatare contingency ; and on May 11, 1800, far-
ther warlike preparations were stopped.

Mr. Webster's speeoh on French spoliations, 4 Webstor's Works, 16^-5. Seo

wpra, ii 333, 334.
As to the spoliations in question, see tupraj $ 248.

^^ The controversy tamed on whether France was an enemy of thi
United States, within the meaning of the law. (See farther, as to th^
effect of this war in extingaishing prior claims. Webster^s Works, iv ^
162. Benton's Thirty Years in the Senate, 487, 494-509. Cong. Glob^^ ^
1854-^55,372. iMd., Index, 120.^

Lawrence's Wheaton (ed. 1863), 878.

In the Brit, and For. St. Pap. of 1812-^14 (vol. i) will be foand t\
legislation of Gongress prior to the war of 1812 ; the corresi>ondei^<
with Great Britain relative to overtares for a suspension of hostilitit
the correspondence with Bassia as to mediation, and with Great Brit^i]
between November, 1813, and December, 1814 ; the several messa^^^^
of the President as to tne war, the correspondence with the comicxts
sioners at Ghent, and reports to the Secretaries of the Navy, of W^^r,
and of the Treasury, in their respective Departments, daring the ^slt.
In the same work, for 1814-'15 (vol. 2), are to be found the action of t;li6
Government of the United States on the peace of 1815, and the a&t; of
Congress of February 18, 1815, relative to the exclusion of foreign sea-
men firom American vessels.

A naval officer of the United States cannot resort to force to compel
delivery to him of American seamen unjustly imprisoned on a vessel io a
foreign port His duty is to demand the delivery of such seamen, aod
if this is refused, to resort to the civil authorities. He can, however,
if there is an attempt forcibly to seize sach seamen from their own
sels, forcibly intervene, ^^ The employment of force is jastifiable
resisting aggressions before they are complete. But if they are consu
mated, the intervention of the authority of Gk)vernment becomes n
sary if redress is refused by the aggressor." 4

Mr. CUy, Sec. of StAte, to Mr. RebeUo, Mar. 22, 1827. MSS. Notes, For. Le^ ^

*^To this state of general peace with which, we have been blessi
one only exception exists. Tripoli, the least cou3iderabIe of the B$^^^
barr States, had come forward with demands unfounded either in rig-
or in compact, and had permitted itself to denounce war, on our failure
comply before a given day. The st^le of the demand admitted but o>
answer. I sent a small s>quadron of frigates into the Mediterrane^^^
viih assurances to that power of our sincere desire to remain in pea<
bat with orders to protect our commerce against the threatened atta«
The measure was seasonable and salutary. The Bey had already
elared war. His cruisers were out Two had arrived at Gibraltar,
toaunerce in the Meditemmean was blockaded and that of the Atlai
in periL The arrival of our squadron dispelled the danger.''

Pnaidntt J«def9on, First ijuiiua MsaMfs* ISOL

CHAP. XVII.] CONDITIONS AND DECLARATION OP. [§ 335.

^' It is certain that a condition of war can be raised without an an-
ihoritative declaration of war, and, on the other hand, the sitaatiou of
peace may be restored by the long suspension of hostilities, without a
treaty of peace being made. History is full of such occurrences. What
period of suspension of war is necessary to justify the presumption of
the restoration of peace has never yet been settled, and must in every
case be determined with reference to collateral facts and circumstances.
^ The proceedings of Spain and Ohili which have been referred to,
although inconclusive, require an explanation on the part of either of
those powers which shall insist that the condition of war still exists.
Peni, equally with Spain, has as absolute a right to decline the good
offices or mediation of the TTnited States for peace as either has to accept
the same. The refhsal of either would be inconclusive as an evidence
of determination to resume or continue the war. It is the interest of the
the United States, and of all nations, that the return of peace, however
it may be brought about, shall be accepted whenever it has become
dearly established. Whenever the United States shall find itself obliged
to decide the question whether the war still exists between Spain and
Peru, or whether that war has come to an end, it will make that decision
only after having carefiilly examined all the pertinent £acts which shaU
^ within its reach, and after having given due consideration to such
i^r^esentations as shall have been made by .the several parties inter-
ested."

iCr. SewMd, Seo. of State, to Mr. QkAi, July 38, 1S68. MSB. Notes, Spain ; Dip.
Corr., 186S.

^ liTow, if this be the true definition of war, let us see what was the

Bitastion of the United States in relation to France. In March, 1790,

Coi^giess had raised an army ; stopped all intercourse with France ;

disaolved our treaty ; l>uilt and equipped ships-of-war, and commissioned

private armed ships, enjoining the former and authorizing the latter to

iefend themselves against the armed ships of France, to attack them on

the high seas, to subdue and take them as prize, and to recapture armed

vessels found in their possession. Here, then, let me ask, what were the

technical characters of an American and French armed vessel, combating

on the high seas, with a view the one to subdue the other, and to make

Piue of his property t They certainly were not friends, because there

^^ a contention by force ; nor were they private enemies, because the

ooQtention was external, and authorized by the legitimate authority of

^6 two Governments. K they were not otir enemies I know not what

^^titates an enemy. • • • What, then, is the evidence of legis-

^tt^o will f In fact and in law we are at war.^

'Washington, J. ; Baa «. Tingy, 4 Dall., 34. See as to this question in relation
to French spoliations, tiipra, $ S48.

In the Prize Cases, 2 Black, 636, it was held by the majority of the
^^irt that the late civil war began with the Presidents proclamation of

237

§§ 336, 337.] WAR. [chap. xvu.

blockade, April 27, 1861 ; while by the dissenting jud^j^es it was held
to have begun on the adoption by Congress of the act of Jaly 13, 1861.
^^ A civil war," said Jadge Grier, giving the opinion of the majority,
<< is never solemnly declared ; it becomes sach by its accidents." The
institution of a blockade was held to be one of these ^^ accidents." On
the other hand, Judge Nelson, in an opinion concurred in by Chief-
Justice Taney, Judge Catron, and Judge CUfford, declared that the act
of July 13, 1861, " recognized a state of civil war between the Govern-
ment aud the Confederate States, a/nd made it territorial.^

The United States may be engaged in war, and have all the rights of
a belligerent, without any declaration by Congress.

The Amy Warwick, 2 Spragae, 123.

II. EFFECT OF, A8 TO CIVIL BIGHTS,

(1) Abrogates treaties.

§ 336.

This subject is discussed in a prior section, Bwpra^ § 135. See also,
eu^ra^ § 302, as to effect of war of 1812 on fisheries.

(2) Breaks up business and suspends contracts.

§ 337.

War does not extinguish debts due from the citizens of one belliger-
ent to those of another; it merely suspends the remedy for their re-
covery.

The State of Georgia t*. BrailBford, 3 Dall., 1.

After a declaration of war, all intercourse, and not merely trading, is
forbidden ; and an American citizen cannot lawfully send a vessel to the
enemy's country to bring away his propertyi

The Rapid, 6 Cranch, 155.

In war, all intercourse between the subjects and citizens of the bel-
ligerent countries is illegal, unless sanctioned by the authority of the
Government or in the exercise of the rights of humanity.

The Jalia, <Md., 181.

The sailing on a voyage under the license, and passport of protection
of the enemy, in furtherance of his views and interests, subjects the
ship and cargo to confiscation as prize of war.

/Hd. The Aurora, iMd., 203. «

The principle of the decision in the Julia (8 Oranch., 181) applies
to a case where it was not expressly stated in the license that its object
was to supply the enemy with provisions, but where such object was
plainly inferable.

The Hiram, iMd., 444.
238

CHAP. XVII.] EFFECT OF, AS TO CIVIL RIGHTS. [§) 337.

Property engaged iu an illicit intercoarse with the enemy is to be
condemned to the captors and not to the United States, the municipal
forfeiture under the laws of the United States being absorbed in the
more general operation of the law of war.

The Sally, ibid., 382.

Trading with an enemy does not ipso facto forfeit the property so
obtained by a citizen, bat only subjects it to condemnation when regu-
larly captured.

The Thomas Gibbons, ibid,, 421.

If, upon the breaking out of a war with this country, our citizens
have a right to withdraw their property from the enemy's country, it
mast be done within a reasonable time. Eleven months after the
declaration of war is too late.

The Saint Lawrence, 9 Cranch., 120.

Citizens of the United States are equally guilty of trading with the
enemy, whether the trade be between an enemy's port and the United
States or between the former and some foreign nation. The offense of
trading with the enemy is complete the moment the vessel sails from a
port of the United States to a port of the enemy.

The Riigen, 1 Wheat., 61.

Under the act of the 6th of July, 1812 (2 Stat. L., 778), " to prohibit
American vessels from proceeding to, or trading with, the enemies of
the United States, and for other purposes," it was held, that living fat
oxen, cows, steers, and heifers are articles of provision and muuitioii^
of war within the true intent and meaning of the act. Also, that driving
living fat oxen, etc., on foot, is not a transportation thereof within the
^e intent and meaning of the same act.

U. S. 9. Sheldon, 2 Wheat., 119.

'Hie sailing under the enemy's license constitutes, of itself, an act of
^ll^gality, which subjects the property to confiscation, without regard
to the object of the voyage or the x>ort of destination.

The Ariadne, ibid., 143.

^ vessel and cargo liable to capture as enemy's property, or for sail-
^og nnder the pass or license of the enemy, or for trading with the
^^^my, may be seized after arrival in a port of the United States and
ooudemned as prize of war. The delictum is not purged by the termi-
^tion of the voyage.

The Caledonian, 4 Wheat., 100.

"^^ citizens of one belligerent state are incapable of contracting with
^k« citizens of the other belligerent state.

Schofleld V. ichelberger, 7 Pet., 586.

230

^ 337.] WAB. [chap. xvn.

The rale is inflexible that trade between citizens or subjects of nations
at war is forbidden, and property on the high seas, intended for an en-
emy's port, is lawfbl prize.

Jecker v. Montgomery, 13 How., 498; 18 ibid.^ 110.

The effect of war is to dissolve a partnership between citizens of
hostile nations.

The WiUiam Bagaley, 5 WaU., 377.

Where a citizen of a State adhering daring the war of the rebellion
to the national oaase brought suit, after the war, against a citizen re-
siding daring the war within the limits of an insurrectionary State, it *
was held that the period during which the plaintiff was prevented from
suing by the state of hostilities should be deducted from the time nec-
essary to bar the action under the statute of limitations.

Hanger v. Abbott, 6 Wall., 532; University v. Finch, 18 iMcZ., 106.

A contract made by a consul of a neutral power with a citizen of a
belligerent state, that he will << protect," with his neutral name, from
capture by the belligerent, merchandise which such citizen has in the
enemy's lines, is against public policy and void.

Coppell V. HaU, 7 WaU., 542.

Commercial intercourse between states at war with each other is in-
terdicted. It needs no special declaration on the part of the sovereign
to accomplish this result, for it follows from the veiy nature of war that
trading between the belligerents should cease.

U. 8. V. Lane, 8 Wall., 185 ; MoEee v. U. S., iHd., 163.

Intercourse with an enemy during war is uiftawfiQ to parties stand-
ing in the relation of debtor and creditor as much as to those who do
not.

U. S. V. Ghrosamayer, 9 Wall., 72.

A transfer of property to a creditor by an enemy debtor, though
made to an agent of the creditor and in payment of a debt contracted
before the war, is void, and cannot be made lawfiQ by any ratification.
ihd.

Every kind of trading or commercial dealing or intercourse, whether
by transmission of money or of goods, or orders for the delivery of either
between two countries at war, directly or indirectly, or through the in-
tervention of third persons or partnerships, or by contracts in any form
looking to or involving such transmission, is prohibited.

Qaoted in Montgomery v. U. S., 15 Wall., 395 ; from Kershaw v, Kelaey, 100 Maw.,
561 ; U, S. V, Lapfene, 17 Wall., 601.

During the occupation of New Orleans by the Federal forces dnrin|^
tbe rebellion, a loyal citizen of that place, describing himself as th^
agent of a certain planter, who was an enemy, residing on a plantations

240

CHAP. XVn.] EFFECT OF, AS TO CIVIL RIGHTS. [^ 337.

in the rebellious region, agreed to sell to a British subject, domiciled in
H^ew Orleans, a crop belonging to the said planter, and described as
his (the planter's) property. It was ruled that the sale was void.

It appeared that the loyal citizen had, prior to the war, made ad-
TaDces to the planter, and it was argued that he had a lien on the prop-
erty and a power to sell it for the repayment of the advances, and
that the sale ought to be regarded as his, and not as a sale by the
planter. The court held, however, that the real parties to the trans-
action were the vendee and a public enemy, at the same time observing
that there was nothing in the case inconsistent with the doctrine that a
lesident in the territory of one belligerent may have in times of war
an agent residing in the territory of the other belligerent, to whom his
debtor may pay a debt, or deliver property in discharge of it, such pay-
ments or deliveries involving no intercourse between enemies.

Montgomery v, U. 8., 15 Wall., 395.

Aa to claims baaed on war, aee aiij^ra, $$ 323/1

As the enforcement of contracts between enemies made before the
war is suspended during the war, statutes of limitation do not run
ft^inst the right of actaon of the parties to such contracts during

the war.

Brown v, Hiatts, 15 Wall., 177 ; Semmes r. Hartford Ins. Co., 13 iUd,^ 1(30.

The muning of interest also ce&ses.

Brown r. Hiatts, 15 WaU., 177.

The war of the rebellion was accompanied b^ the general incidents of
A war between y]dei>endent nations. The inhabitants of tbe rebellious
^d of the loyal States became enemies to each other, and were liable
to be 80 treated without reference to their individual dispositions or
^^pinions; all commercial intercourse and correspondence between them
were interdicted by principles of public law, as well as by express en-
•^ents of Congress; all contracts previously made between them
^iB suspended, and the courts of each belligerent were closed to the
citiiens of the other.

•^Bale of real estate during the rebelion, under a power in a deed of
^^ previously given to secure the payment of promissory notes of the
S'^tors in the deed, is valid, though said grantors at the time of the
^ were citizens and residents of one of the States declared to be in
«»«arrection.

llniTewity r. Finch, IS Wall., 106.

The fact that seven months after a ten years' lease was made, a " gen-

^l order" from the military department of Louisiana, forbade the sev-

^fal bureaus of the municipal government of the city, created by military

*^thority, from disposing of any of the city property for a term extend-

S.Mis 1G2 — VOL. lu IG 241

§ 337.] WAB. fCHAP. XVII.

ing beyond a period wlien the regular civil governmeut of the city might
be established, was held not to have invalidated the lease.

New Orleaus r. Steamboat Company , 20 Wall., 387.

The Government of the United States has power to permit limited
commercial intercourse with an enemy in time of war, and to impose
such conditions thereon as it sees fit ; this power is incident to the powei
to declare war, and to carry it on to a successful termination. And it
would seem that the President alone, who is constitutionally invested
with the entire charge of hostile operations, may exercise this power ;
but whether so or not, there is no doubt that, with the concurrent au-
thority of the Congress, he may exercise it according to his discretion

Hamilton v, Dillhi, 31 Wall., 73.

A resident of a loyal State, after the 17th of July, 1861, and jua
after the civil war had become flagrant, procured a pass from tli.
proper military authority of the United States permitting him to g
through the Army lines into the insurrectionary territory, and nnd^
it went into the Confederate States and remained there, engaged 1
business, until the latter part of 1864, when he returned to his ol
domicil. Prior to his return he purchased a large quantity of cotto
(724 bales), which he stored in Savannah, and which fell into the hand
of the forces of the United States when that place was captured bj
them. It was held, on a question whether he had been trading with th4
enemy, that he had not lost his original domicil, and accordingly thsti
he had been so trading, t

Mltohell V. U. S., ibid., 350.

It was not until the 16th of August, 1861, that all commercial inter*
course between the States designated as in rebellion aiid the inhabitants
thereof, with certain exceptions, and the citizens of other States an^:
other parts of the United States, became unlawful.

Matthews r. McStea. 91 U. S., 7.

A foreigner, domiciled during the year 1864 in Texas, who, in order t^
obtain permission of the Confederate Government to export his cotton
sold at a nominal price and delivered to its agents or officers for its use &i
equal amount of other cotton, which he subsequently redeemed by pa$
ing a stipulated sum therefor, directly contributed to the support of thp
enemy, and gave him aid and comfort. Out of such a transaction tm
demand against such agents or officers can arise which will be enforce
in the courts of the United States.

Radlch V. Hatching, 95 U. 8. 210. See 9upra, $$ 223/., 227/.

War puts every individual of the respective Governments, as well ^
the Governments themselves, in a state of hostility with each oth^
All treaties, contracts, and rights of property are suspended. The stx
jects are in all respects considered as enemies. They may seize tJ

242

^HAP. XVII.] EFFECT OF, A8 TO CIVIL RIGHTS. [§ 337.

persons and property of each other. They have no persona standi in
judicioj no power to sue in the pablic courts of the enemy nation. It
becomes, therefore, criminal to comfort or aid the enemy.

The schooner Rapid and Cargo, 1 Gallison, 303.

In war all intercourse between subjects and citizens of the belligerent
•eonntries is illegal, unless sanctioned by the authority*" of the Oovem-
ment, or in the exercise of the rights of humanity. • • • Independ-
ent of all authority, it would seem a necessary result of a state of war to
€Q8p6nd all negotiations and intercourse between the subjects of the
belligenent nations.

The Jnlia and Cargo, ibid,, 594.

There is no legal difference, as to a plea of alien enemy, between a
corporation and an individual.

Society, &c. r. Wheeler, 2 Gallison, 105.

A sale by a belligerent of a war ship to a neutral in a neutral port is
invalid by the law of^ nations, ka construed both in England and America.

The Georgia, 1 Lowell, 96. See infra, $$ 388, 393.

By the law of nations, where a war exists between two distinct and
independent powers, there must be a suspension of all commercial inter-
<^nrse between their citizens ; but this principle has not been applied to
tbe States which joined the so-called Southern Confederacy.

U. 6. V. Six Boxes of AnnSi 1 Bond, 446.

The existence of war does not prevent the citizens of one belligerent
power from taking proceedings for the protection of their own property,
in their own courts, against the citizens of the other, whenever the
later can be reached by process.

Lee V. Rogers, 2 Sawyer, 549.

Permission cannot be granted to a citizen of the United States to send
^vessel to a port under th^ dominion of a country with which we are
^tiwarto bring away a cargo of merchandise.

lOp., 175. Rush., 1814.

I^ebts due by one belligerent state to the citizens of the other, are
^<>t extinguished by the war.

12 Op., 72, Stanbery, 1866.

"The sabject of nentral trade with belligerents is discnssed infra, $ 388; that of

extingnishment of international claims by war, twpra, $$ 240, 248.
Licenses to trade witb enemy are considered in Dana's Wheaton, $ 410.

^ Judge Holmes, in a note to 1 Kent, 167, maintains that the rule is
'^hat these contracts (made before the war) are dissolved which can-
J^ot be performed except by way of commercial intercourse." In Ker-
*«awt>. Kelsey (100 Mass., 561), it was held that the rule only prohibited

243

§ 337.] WAB [chap. XVIli.

^^ intercoarse between colonies of tbe two belligerents wbieli is incon-
sistent with the state of war between their coantries.''

" In the treaty of 1848 between the United States and Great Britain it
is provided that in case of war between the two nations the mail-
packets shall be unmolested for six weeks after notice by either Gov-
ernment that the service is to be discontinued; in which case they shall
have safe-conduct to return (TJ. S. Laws, ix, 965). During the Mexican^
war British mail steamers were allowed by the United States forces to--
pass in and out of Vera Cruz. During the civil war in the United
States the United States Government adopted a rule that 'public mails
of any friendly or neutral power, duly certified and authenticated as^
such,' found on board captured vessels, * shall not be searched orH)pened^
but be put, as speedily as may be convenient, on the way to their des-
ignated destination. This instruction, however, will not be deemed to*
protect simulated mails, verified by forged certificates or counterfeited
seals.' These instructions from the Secretary of State to the Secretary
of the Navy, of October 31, 1862, were communicated to the ministers-
of foreign Governments. (Dip. Gorr., 1863, part i, 402.) In the case
of the prize Peterhofl^ in which the question was as to the actual own-
ership and destination of the cargo, the court at first directed the mails-
found on board to be opened in the presence of the British consul, aodt
that he be requested to select such letters as appeared to him to relate^
to the cargo and its destination, and reserve the rest of tbe mail to for-
ward to its destination. The British consul refused to comply with this
request, protesting that the mail shonld be forwarded unopened. On
appeal to the Secretary of State, the United States attorney at New-
York received directions to forward the entire mail to its destination,,
unexamined, notwithstanding there was reason to believe some letters
in it would furnish evidence as to the cargo ; and Mr. Seward wrote to^
to Mr. Adams, April 21, 1863, to that effect, adding, ' I shall, however,,
improve the occasion to submit some views upon the general question
of tbe immunities of public mails found on board of vessels visited under
the belligerent right of search. The subject is one attended with many:
embarrassments, while it is of great importance. The President be-
lieves it not less desirable to Great Britain than it is to the United
States and other maritime powers to arrive at some regulation that will
at once save the mails of neutrals from unnecessary interruption and
exposure, and, at the same time, prevent them from being made use of
as auxiliaries to unlawful designs of irresponsible persons seeking to- —
embroil friendly states in the calamities of war.' ,

'' Tbe rule in Mr. Seward's instructions of 31st October, 1862, relates^
only to public mails duly authenticated ; and the capturing Govern—
ment reserves the right to make sure of the genuineness of the authen —
ticatiou. When the vessel is a private one, but can*ying mails under ^i---
Government c(»ntract, like the Cunard or Peninsula and Oriental steamr-^
ers, and the lines subsidized by the United States tor that purpose, ^^
Government mail agent is usually on board, having them in chargt^^
Although this fact does not, in law, protect the mails from search, ye?
it affords opportunity for general arrangements between nations, an
makes special arrangements between the captors and the mail agen
In particular cases, more probable."

Datia's Wheaton, $ 504, note 228. As to Trout case and arrest of dispatobeft,
J J 325, 328, 374.

244

1»AP. XVII.] EFFECT OF, AS TO CIVIL BIGHTS. [§ 3370.

^'Tbe protection of the interests and welfare of the state makes th&
application of this rale [prohibiting intercourse between belligerents]
-especially necessary to the merchaj|jit and trader who, nnder the tempta-
tions of an unlimited mtercoarse with the enemy, by artifice or fraud, or
from motives of cupidity, might be led to sacrifice those interests.

^*' See United States v. Boxes of Arms (1 Bond, 446) as to the appli-

•cation of this rule to the States which joined the Southern Confederacy

•during the American civil war. See also Gay's Gold Q3 Wall., 358)

and United States v. Homeyer (2 Bond, 217) as to the efiect of the acts

•of Conjgress, proclamations, etc., on the same rule."

2 HaUeck's Int. Law (Baker's ed.), 154.

•

'^ The language of Mr. Justice Story in the cases of the Rapid and
the Mary in the circuit court amounts to a clear denial of the exist-
-euce of the right in question [withdrawal of property of one belliger-
-ent from the territory of the other] nnder any circumstances, although
in tbe case of the St. Lawrence, subsequently decided in the Supreme
<3ourt, where the opinion of the court was given by the same distin-
gaisbed judge, any direct decision of this question was studiously,
^avoided, and that case was decided on the ground that the property
liad not been withdrawn from the enemy's country toithin reasonable
tim« after the knowledge of the war. This exact question, as already
remarked, has never been determined by the Supreme Court of the
United States, nor is its decision involved as a necessary consequence
in the cases which have been atljudicated before that tribunal. In a
'Case decided in the supreme court of the State of New York it was held
that a citizen of one belligerent ntaj^ withdraw his property from the
<»Qntry of the other belligerent, provided he does it within a reason-
able time after the declaration of the war, and does not himself go to
the enemy's country for that purpose. In delivering the opinion of
the court in this case (Armory v, McGregor) Chief-Justice Thompson
f^marks that from the guarded and cautious manner in which the Su-
preme Court of the United States had reserved itself upon this par-
tieolar question there was reason to conclude that when it should be
distinctly presented it would be considered as not coming within the
i^licy of the rule that renders all trading or intercourse with the enemy
illegal,'

/Nd., 16:).

(3) But not tbucbb.

§337a.

^V there is one rule of the law of war more clear and peremptory
^an another, it is that compacts between enemies, such as truces and
^Pitulations, shall be faithfully adhered to, and their non-observance
lAdenoanced as being manifestly at variance with the true interest and
^^% not only of the immediate parties, but of all mankind."

Mr. Webster, See. of State, to Mr. Thompaon, Apr. 15, 1842. MSS. Inst., Mex.
6 Webecer'a Works. 438.

245

§ 338.] WAR. [chap, xvir

III. APPLICATION OF.TO ENEMY'S PROPERTY.
{Vi Private property on land not usually subject to enemy's seizure

§338.

Every nation at war with another is justifiable, by the general and
strict law of nations, in seizing and confiscating all movable property
of its enemy (of any kind or nature whatsoever), wherever foand,,
whether within its territory or not.

Ware t. Hylton, 3 Dall., 199, 226. See App., Vol. Ill, J 338.

War gives the right to confiscate, bat does not itself confiscate, the
property of the enemy which may be foand in the country at the com-
mencement of the war. When the sovereign authority shall choose t.o
bring the right of confiscation into operation, the judicial departmei^t;
must give effect to its will.

Brown v, U. S., 8 Cranch, 110.

In the United States, proceedings to condemn the property of an*
enemy found within the territory at the declaration of war must be in
execution of some existing law.

ibid. Bat see the Prize Cases, 2 Black, 635.

An act of Congress merely declaring war does not authorize sacli
confiscation.

Brown v. U. S., 8 Cranch, 110.

An island conquered and occupied by the enemy is, for belligerent^
And commercial purposes, his soil. The produce of that soil is liable to
condemnation on the high seas while it belongs to the individual pro-
prietor of the soil which produced it, though he is a neutral.

Thirty Hogsheads of Sngar v, Boyle, 9 Cranch^ 191.

Private property may be taken by a military commander for pnbli ^^
use, in ca&es of necessity, or to prevent it from falling into the hands c^ *
the enemy, but the necessity must be urgent, such as will admit of n<
delay, or the danger must be immediate and impending. But in suci
cases the Government is bound to make fall compensation to the ownei

Mitohell V. Harmony, 13 How., 115.

^^ Being enemies' property, the cotton was liable to capture and co
fiscation by the adverse party. (Prize Cases, 2 Black, 687.) It is trci^
that this rule, as to property on land, has received very importa
qualifications from usage, from the reasonings of enlightened publicist
and from judicial decisions. ^ It may now be regarded as substautiaH
restricted to special cases dictated by the necessary operation of wa-
(1 Kent., 02), and as excluding, in general, *the seizure of the priv
property of pacific persons for the sake of gain.' {Ibid.j 93.) The co

24G

CHAP. xvilJ application of, to enemy's property. [§ 338.

mandittg general may determine in what special cases its more strin-
gent application is required by military emergencies; while considera-
tions of pnblic policy and positive provisions of law and the general
spirit of legislation must indicate the cases in which its application
may properly be denied to the property of non-combatant enemies.

^'In the case before us, the captare seems to have been justified by
tbe peculiar character of the property and by legislation. Il is well
luown that cotton has constituted the chief reliance of the rebels for
means to purchase the munitions of war in Europe. It is a matter of
l^istory, that rather than permit it to come into the possession of the
Isational troops, the rebel Government has everywhere devoted it, how-
ever owned, to destruction. The value of that destroyed at New Or-
leans, just before its capture, has been estimated at eighty millions of
dollars. It is in the record before us, that on this very plantation of
Mrs. Alexander, one year's crop was destroyed in apprehension of an
advance of the Union forces. The rebels regarded it as one of their
main sinews of war; and no principle of equity or just policy required,
when the national occupation was itself precarious, that it should be
spared from capture and allowed to remain, in case of the withdrawal
of the Union troops, an element of strength to the rebellion."

Chase, C. J. ; Mrs. Alexander's Cotton, 2 Wall., 419.
Ab to cotton being contraband, see infra^ $ 373.
Aa to claims for indemnity, see 9}ipraf $$ 223^.

The humane maxims of the modern law of nations, which exempt pri-
vate property of non-combatant enemies from capture as booty of war,
fonnd expression in the abandoned and captured property act of March

12, 1863.

U. S. r. Klein, 13 Wall., 128. See BuprOy $$ 223 /.

'^ No titles were divested in the insurgent States, unless in pursuance
<)f a judgment rendered after due legal proceedings. The Oavemment
''^nized to the fullest extent the humane maxims of the modem law of
*«<*0M, trkicA exempt property of non-combatant enemies from capture or

^^ofwarP

Chase, C. J.; U. S. r. Klein, 13 Wall., 128. See to same general effect, Lamar r.
Browne, 92 U.S., 194.

^here private property is impressed into pnblic use during an emer-
?*^cy, such as a war, a contract is implied on the part of the Govern-
ment to make compensation to the owner.

U.S.r. Rnsaell, 13 Wall., 623.

^nring the civil war enemies' property was made liable to confiscation
"J certain acts of Congress, but the Government of the United States
^^rted no general right in virtue of conquest to compel the payment
®^ private debts to itself.

Planters' Bank r. Union Bank, 16 Wall., 483. Supra, }$ 223/.; infra, ^$352/.

247

^ 338.] WAR. [chap, xyil

It is by no means to be admitted that a conquering power may compel
private debtors to pay their debts to itself, and that sach payments ex-
tingnish the claims of the original creditor. The principle of interna-
tional law, that a conquering state, after the conquest has subsided
into Government, may exact payment from the state debtors of the
conquered power, and that payments to the couqueror discharge the
debt, so that when the former Government returns the debtor is not
compellable to pay again, has no applicability to debts not due to the
conquered state.
Ibid.

W., a resident of Memphis, purchased, on April 12, 1863, in Mobile,
from B., a resident of that city, both cities being then in the occupancy
of the national forces, cotton which was then in the military lines of
the insurgent forces in Alabama and Mississippi, the inhabitants
whereof had been declared to be in insurrection. Between June 30 and
December 1 of that year, a portion of the cotton, while it was in the
hands of the planters from whom it had been originally purchased by
the Confederate Government, the agent of which had sold it in Mobile
to B. on the 5th of April, was seized by Treasury agents of the United
States and sold. The proceeds were paid into the Treasury and W.
sued to recover them. It was ruled that his purchase being in violation
of law no right arose therefrom which can be enforced against the
United States.

Walker's Execaton v. U. S., 106 U. S., 413. Supra, H 222/. ; infra, $$352/.

By the law of nations the debts, credits, and corporal proi>erty of
an enemy, found in the country on the breaking out of war, are con-
fiscable.

Cargo of ship Emnlons, 1 Galliaon, 562.

The seizure of enemy property by the United States as prize of war
on land, jure bellij is not authorized by the law of nations, and can be
upheld only by an act of Congress.

U. S. V. Seyenteen handred and fifty-Blz Shares of Capital Stock, 5 Blatcli., 232

<<The war of the Revolution has been sometimes appealed to as
countenancing the sequestration of debts and the confiscation of prop-
erty. This was denied by Mr. Hamilton, in his argument on the lOtb
article of the British treaty of 1794. He said, in reply to those ^ who
represent the confiscation or sequestration of debts as our best means
of retaliation and coercion, as our most powerful, and sometimes as oui
only means of defense. So degrading an idea will be rejected witb
disdain by every man who feels a true and well-informed national
pride ; by every man who recollects and glories that, in a state of still
greater immaturity we achieved independence without the aid of this
dishonorable expedient. The Federal Government never resorted to
it, and a few only of the State governments stained themselves with it
It may, perhaps, be said that the Federal Government had no power
on the subject ; but the reverse of this is truly the case. The Federal

248

CHAP. XVII.] APPLICATION OP, TO ENEMY's PEOPERTY. [§ 338,

Goveraroent alone had power. The State governments had none,
thoogh some of them undertook to exercise it. This position is founded
on the solid groand that the confiscation or sequestration of the debts
of an enemy is a high act of reprisal and war, necessarily and exclu-
sively incident to the power of making war, which was always in
the Federal Government,' (Hamilton's Works, vii, 329, Camillus No.
XVIII.)

"To remedy, as far as was practicable, what in this view of the case
mif^htbe deemed the usurpation of the States under the old Confedera-
tion, not only was the provision in reference to debts, noticed in the
text (ch. 1, § 12, of this part, p. 542 supra)^ introduced into tho treaty
of peace of 1783, but another article (V) contained an agreement on
the part of Congress to recommend to the legislatures of the respective
States to provide for the restitution of all estates, rights, and proper-
ties which had been confiscated, and even in cases where the property
liadbeen sold, its restoration, on refunding to the persons in possession
what they had paid in purchasing it since the confiscation. (8 Stat.
L, 82.)»

Lawrence's Wheaton Ced. 1863), 610. See supra, $ 223.

^4t has has been held that the act of Congress declaring war against
Oreat Britain did not work such confiscation. (The Juniata, Newberry,
352.) In Brown v. U. S., ut %up,^ the right to confiscate debts was as-
serted; and Ware v. Hylton (3 Dall., 199), was relied on as authority.
But the better view is that the property of tho inhabitants of an in-
vaded country should not be taken by an invading army without re-
mimeration. (XJ. S. v. Stevenson, 3 Benedict, 119 ; Bluntschli, § 657.)
In the United States Articles of War of 18C3 (§ 2, art. 37) it is said :
^ The United States acknowledge and protect, in hostile countries oc-
cupied by them, religion and morality, strictly private property, the
P^ns of the inhabitants, especially those of women, and the sacred-
iiess of the domestic relations. Offenses to the contrary shall be rig-
oroasly punished.' Infra^ § 349. To the effect that private property
^DDot be seized by an invading army, unless contraband, see 1 Kent
^^M 93 ff.; U. S. ^. Homey er, 2 Bond, 217 ; Transactions of the Na-
tional Association for the Promotion of Social Science, 1860, 163; 279;
»W., 1861, 126, 748, 794 ; iHd., 1862, 89, 896, 899 ; ibid,, 1863, 851, 878,

^\ iMrf., 1864, 696, 656; ibid., 1868, 167-187; Hautefeuille, Droits et
Avoirs, i, 340-344 ; Martens, Essai sur les Armateurs, § 45 ; and other
^thorities given in Field, ui 8up. Heffter ( Volkerrecht, §§ 130, 132, 139,
1^^) 175, 192) holds that war gives only actual possession, but not the
^S^I property in such captures.

^^Dr. Woolsey (Int. Law, § 118, note), after noticing Hamilton's argu-
^nt against confiscation (Hamilton's Works, vol. vii, 19th Letter of
^Camillas'), adds, speaking of the confiscation of the private property
^f the sabject of an enemy, ^ The foreigner brought his property herl^,
^^can at once be said, knowing the risk he might run in the event of a
*&f. Why should he not incur the risk t He should incur it, say the
older practice and the older authorities. He should not, 'says the
i^odern practice, although international law in its rigor involves him in
i^ He should not, according to the true principles of justice, because
l^i^ relation the state at war is not the same with the relation of his
^^ereign or Government; because, in short, he is not in th'e tuU sense
an enemy.' To this it may be added that whan a foreigner invests prop-
^^7 in a country with the permission of its Government, there is an im-

249

§ 338.] WAR. [chap. XVII

plied understanding that bis title thereto will be respected unless di
vested by his [lersonal act.

*< As sustaining the right of seizure of private property in an enemy'f
countrv, see The Venus, 8 Granch, 253 ; The Ann Green, 1 Ga.l., 274
The Lilla, 2 Spragne, 177 ; The Friendschaft, 3 ^Vheat., 15 ; 4 ibid., 105
That this does not impress with belligerency a neutral on motion t(
leave bona fide belligerent territory, see The Venus, ut supra ; The St
Lawrence, 1 Gall., 467. That neutrals and citizens are to be allowed i
reasonable time, after breaking out of war, to withdraw from a bellig
erent country, see The Sarah Starr, Blatch. Pr. Ca., 050 ; The Genera
Pinckney, ihid.j 608.'^

Whart. Com. Am. Law, $ 216.

Ab to liability to seizure of neutral property ia enemy's lines, see in/raf ^ 352,

As to wanton destruction of property, see infra, i 349.

^' The emancipation of an enemy's slaves is not among the acts «
legitimate war. As relates to the owners, it is a destruction of priva^.*
property not warranted by the usages of war."

Mr. Adams, Sec. of State, to Mr. Snsb, July 7, 1R20. MSS. Inst., Ministep.

It is Otherwise when such slaves are a material part of the enem ^
resources, in which case they become contraband and may be emaac
pated.

President Lincoln's Emancipation Proclamation.

As to ravages of British forces in war of 1812, see 1 IngersoU's Late War, I j

series, 184^.
For a discussion of the action of the United States with reference to the righ 'i

of a sovereign over the private property of subjects of a sovereign wir^

whom he is at war, see 3 Phill. Int. Law (3d ed.), 133^.
For an acconnt of the action of the United States in reference to the seizure c^

the private property of non-combatant subjects of enemy States, see

Pbill. Int. Law (3 ed.}, 3C6.
As to seiznre of private pi*operty in war, see Judge Holmes' note, I Keov-

Com., 91.

" Hie Supreme Court of the United States, in Brown v. U. S., fi
Cranch, 110, decided primarily and unequivocally that, by the law of mw
tions, the right exists to seize and confiscate any property of an enem$
found in the country on the happening of war. On that point th«
court was unanimous. The case is so treated by all the American com
mentators. Kent says (i, 50) that ^ the point seems no longer open foi
discussion in this country, and has become definitively settled in favoi
of the ancient and sterner rule.' Halleck (p. 365) says : * The Supreme
Court of the United States has decided that the right, stricti juriM
still exists, as a settled and undoubted right of war, recognized by tb«
law of nations.' Woolsey (§118) says, 'The Supreme Court of th-
United States has decided, in accordance with the body of earlier an*
later text- writers, that by strict right such property is confiscable.' • •

»*Earl Bussell, in a dispatch of the Cth December, 1861, to the Bri i
ish consul at Kichmond, Va., speaking of an act of the so-callod Cc^
federate Congress confiscating the property of all alien enemies ( i
which class were included all residents in the loyal States, Mhetia <
Americans or domiciled foreigners), says, ' Whatever may have be^e
the abstract rule of the law of nations on this point in former tinioi
the instances of itsapiilication in the manner contemplated by tlie »c

250

CHAP. XVII.J APPLICATION OF, TO ENEMY's PROPERTY, [§ 339r.

of the CJonfederate Congress, in modern and more civilized times, axe-
so rare, and have been so generally cx)ndemned, that it may be said to
have become obsolete.' (Parliamentary Papers, 1802, 108. See note-
157, in/ra, on Confiscation of Private Debts, and note 1(>9, tn/ra, on^
Conqaest and Belligerent Occupation. )"

Dana's Wheaton, $ 304, note 156.

The subject of seizure of aliens' cotton daring the lo^ civil war is discnssed'

Bupra, $$ 203, 224, 228 ; infra, J J 343, 373.
As to wasting of enemy^s property, see in/raf i 349.

(2) COXTIUBUTIONS MAY BE IMPOSED.

§ 339.

'' No principle is better established than that a nation at war has the
right of shifting the bnrden off itself and imposing it on the enemy by
exactJDg military contribations. The mode of making sneh exactions
must be left to the discretion of the conqueror, but it should bo exercised
in a manner conformable to the rules of civilized warfare.

*^The right to levy these contributions is essential to the successful

prosecution of war in an enemy's country, and the practice of nations

has been in accordance with this principle. It is as clearly necessary

itt the right to fight battles, and its exercise is often essential to the

Babsistence of the army.

** Entertaining no doubt that the military right to exclude commerce-
^together from the ports of the enemy in our military occupation in-
cluded the minor right of admitting it under prescribed conditions, it
^me an important question, at the date of the order, whether there
^oold be a discrimination between vessels and cargoes belonging to-
i^eutral nations.

^'Had the vessels and cargoes belonging to the United States been
Emitted without the payment of any duty, while a duty was levied ott
foreign vessels and cargoes, the object of the order would have been
defeated. The whole commerce would have been conducted in American
vessels; no contributions could have been collected, and the enemy would
We been furnished with goods without the exaction from him of any
contribution whatever, and would have been thus benefited by our
^Jiflitary occupation, instead of being made to feel the evils of the war.
border to levy these contributions, and to make them available for
^ke support of the army, it became, therefore, absolutely necessary that
^®y should be collected upon imports into Mexican ports, whether in
^easehj belonging to citizens of the United States or to foreigners.

"It was deemed proper to extend the privilege to vessels and their
^goes belonging to neutral nations. It has been my policy, since the
^mmencement of the war with Mexico, to act justly and liberally to-
^&rd all neutral nations, and to afford to them no just cause of com-
plaint; and we have seen the good consequences of this policy by the
K^ueral satisfaction which it has given."

l^retident Polk, Special Message, Feb. 10, 1848.

251

§ 342.] WAR. [chap, xvil

ville, claimed the principle of free ships making free goods as then
actually established by general usage.

3 Rives' Madison, 347.348; citlnff l Wait's St. Pap., 404.

" Mr. Jeflferson's assertion (in his answer to Genet of July 24, 1793), of
the principle Ihat enemy's property is liable to capture and condemna-
tion in the vessel of a friend is not absolute. His words are, * I believe
it cannot be doubted.'"

6 J. Q. Adams' Mem., 162 (July 7, 1823).

On June 11, 1824, "Mr. Wirt (at Cabinet meeting) insisted that we
could not, without inconsistency, deny the right of belligerents by the
law of nations to take the property of enemies in neutral vessels, and
read in the State Papers Mr. Jefferson's letter to Genet upon that sub-
ject. 1 considered the law of nations upon this point as unsettled ; but
Mr. Wirt's argument was supported by decisions of the Supreme Court,
against which the executive Government could not safely assume an
adversary principle. That knot of national law will ultimately resolve
itself into a question of foreeP

/Wd., 382.

That the United States acknowledged that the rule of "free ships,
free goods" was not part of the law of nations at the breaking out of
the war of the £rst French Revolution is maintained in 3 Phill., Int.
Law. (3 ed.), ^Ibff, As to subsequent action of the United States in
reference to that rule, see ibid,^ 345, 354, 364. In the same line may be
consulted article by Mr. A. H. Everett, 44 N". Am. Rev., 24.

" Another source of complaint with Mr. Genet has been that the
English take French goods out of American vessels, which, he says,
is against the law of nations, and ought to be prevented by us. On
the contrary, we suppose it to be long an established principle of the
law of nations that the goods of a friend are free in an enemy's vessel,
and an enemy's goods lawful prize in the vessel of a friend. The in-
convenience of this principle which subjects merchant vessels to be
stopped at sea, searched, ransacked, led out of their course, has induced
several nations latterly to stipulate against it by treaty, and to sub-
stitute another in its stead, that free bottoms shall make free goods,
and enemy's bottoms enemy's goods ; a rule equal to the other in point
of loss and gain, but less oppressive to commerce. As far as it has*
been introduced, it depends on the treaties stipulating it, and forms ex-
eeptions in special cases to the general operation of the law of nations*
We have introduced it into our treaties with France, Holland, and.
Prussia, and French goods found by the two latter nations in AmericaiB.
bottoms are not made prize of. It is our wish to establish it with otheir
nations. But this requires their consent also, is a work of time, and iim
the meanwhile they have a right to act on the general principle, with-
out giving to us, or to France, cause of complaint"

Mr. JeffcrsoD, Sec. of State, to Mr. Morris, Ang. 16, 1793. MSS. Inst., Ministers.

The maxim " free ships make free goods" is not an accepted princi-
ple of the law of nations, but was introduced as an exception thereto

254

€HAP. XVII.] SEIZURE OF GOODS AT SEA. [§ 342.

in the 23d section of the first French- Americau commercial treaty.
"This stipulation was intended to operate (indeed it was its sole object,
and otherwise coald have no operation at all) when one of the parties
should be at war with a nation or nations with whom the other shonld
beat peace." The maxim, however, was set aside by France during
her war with England in 1796-'97.

Mr. Pickering, Sec. of State, to Mr. Pinckney, Jan. 16, 1797. I Am. St. Pap.
(For. Rel.), 5C9.

"It is possible that in the pending negotiations for peace (July, 1797,
betwecD Great Britain and France) this principle of free ships making
free goods may be adopted by all the great maritime powers; in which
«a6e the United States will be among the first of the other powers to
accede to it and to observe it as a universal rule.''

^r. Pickering, Sec. of State, to Mr. J. Q. Adams, July 1?, 1797. MSS. Inst.
Ministers, 2 Am. St. Pap. (For Rel.), 250.

"The principle of making free ships protect enemy's property has
always been cherished by the maritime powers who have not had large
navies, though stipulations to that effect have been in all wars more or
less violated. In the present war, indeed, they have been less re-
spected than usual, because Great Britain has held more uncontrolled
the command of the sea, and has been less disposed than ever to con-
<5e(le the principle ; and because Prance has disdained most of the re-
<!eived and established ideas upon the laws of nations, and considered
herself as liberated from all the obligations toward other states which
interfered with her present objects or the interests of the moment."

Mr. J. Q. Adams, minister at Berlin, to the Sec. of State, Oct 31, 1797. 2 Am.
St, Pap. (For. Eel.), 251.

"It is a general rule that war gives to a belligerent power a right to
^ueand confiscate the goods of his enemy. However humanity may
<leplore the application of this principle, there is perhaps no one to
which man has more universally assented, or to which jurists have
^fe auiformly agreed. Its theory and its practice have unhappily
^n maintained in all ages. This right, then, may be exercised on the
foods of an enemy wherever found, unless opposed by some superior
^fht It yields by common consent to the superior right of a neutral
wtjon to protect, by virtue of its sovereignty, the goods of either of
^0 belligerent powers found within its jurisdiction. But can this right
?f protection, admitted to be possessed by every Government within
Its mere limits in virtue of its absolute sovereignty, be communicated
^ ft vessel navigating the high seast

^^li is supposed that it cannot be so communicated, because the ocean
ycing common to all nations no absolute sovereignty can be acquired
^^ it. The rights of all are equal, and must necessarily check, limit,
ftnd restrain each other. The superior right, therefore, of absolute
^^ereig^nty to protect all property within its territory ceases to be
^nperior when the property is no longer within its own territory, and
^*y be encountered by the opposing acknowledged right of a belliger-
ent power to seize and confiscate the goods of his enemy. If the bel-
J|?erent permits the neutral to attempt, witbout hazard to himself,
^•^ns to serve and aid his enemy, yet he does not relinquish the right of
<l«eating that attempt whenever it shall be in his power to d^fe^A) \t),

255

§ 342.] WAR. [chap. XVI

Thns it is admitted that an armed vessel may stop and search at sea
neutral bottom, and may take out goods which are contraband of wa
without giving cause of offense or being supposed in any degree to ii
fringe neutral rights; but this practice could not be permitted with!
the rivers, harbors, or other places of a neutral where its sovereignt
was complete. It follows, then, that the full right of affording prote<
tion to all property whatever within its own territory, which is inhei
ent in every Government, is not transferred to a vessel navigating th
high seas. The right of a belligerent over the goods of his enem.
within his reach is as complete as his right over contraband of wai
and it seems a position not easily to be refuted that a situation tha
will not protect the one will not protect the other. A neutral bottom
then, does not of right, in cases where no compact exists, protect froti
his enemy the goods of a belligerent power."

Letter of Messrs. Pinckney, Maishall, and Gerry to the Fronoh minister of foi
eign affairs, M. de TaUeyrand, Jan. 17, 179a 2 Am. St. Pap. (For. Rel.]
171. Qnot^, with approval, by Sir W. Vemon-Haroourt, in Historioas oi
Int. Law, 208, 209.

'' The question whether neutral ships shall protect enemy's propert;
is, indeed, important. It is of so much importance that if the princi
pie of free ships j free goods were once really established and honestl;
observed it would put an end forever to all maritime war, and rende
all military navies useless. However desirable this may be to human
ity, how much soever | hilosophy may approve it and Christianity dc
sire it, I am clearly convinced it will never take place. The dominan
power on the ocean will forever trample on it. The French wouN
despise it more than any nation in the world, if they had the maritim*
superiority of power, and the Bussians next to them."

President Adams to Mr. Marshall, Sec. of State, Oct. 3, 1800. 9 John Adanu
Works, 86.

<< When Europe assumed the general form in which it is occupied b;
the nations now composing it, and turned its attention to maritim
commerce, we found among its earliest practices, that of taking th
goods of an enemy from the ship of a friend ; and that into this prac
tice every maritime state went sooner or later as it appeared on th(
theater of ^he ocean. If, therefore, we are to consider the practice u
nations as the sole and sufficient evidence of the law of nature amou.
nations, we should unquestionably place this i»'inciple among those c
the natural laws. But its inconveniences, as they affected neutral mi
tions peaceably pursuing their commerce, and its tendency to embm;
them with the powers happening to be at war, and thus to extend tb
flames of war, induced nations to introduce by special compacts, fn»t
time to time, a more convenient rule, ^ that free ships should make ire
goods;' and this latter principle has, by every maritime nation of El
rope, been established, to a greater or less degree, in its treaties wit!
other nations ; insomuch, that all of them hare, more or less frequently
assented to it as a rule of action in particular cases. Indeed, it is uok
urged, and I think with great appearance of reason, that this is tbe
genuine principle dictafed by national morality ; and that the first prac-

256

<mAP. xvn.] SEIZURE of goods at sea. [§ 342.

to arose from accident, and tbo particalar convenience of the states
which first figured on the water, rather than from well-digested re-
flections on the relations of friend and enemy, on the rights of territo-
rial jurisdiction, and on the dictates of moral law applied to these.
Thus it has never been supposed lawful, in the territory of a friend,
to seize the goods of an enemy. On an element which nature has not
subjected to the jurisdiction of any particular nation, but has made
common to all for the purposes to which it is fitted, it would seem that
the particular portion of it which happens to be occupied by the vessel
of any nation, in the course of its voyage, is, for the moment, the ex-
dasive property of that nation, and, with the vessel, is exempt from
iotTQsion by any other, and from its jurisdiction, as much as if it were
lying in the harbor of its sovereign. In no country, we believe, is the
rule otherwise, as to the subjects of property cohimon to all. • • •

'^ Shall two nations, turning tigers, break up in one instance the
peaceable relations of the whole world t Beason and nature clearly
proDounce that the neutral is to go on in the enjoyment of all its
rights, that its commerce remains free, not subject to the jurisdiction
of another, nor consequently its vessels to search or to inquiries
whether their contents are the property of an enemy or are of those
vhich have been called contraband of war.

'^Xor does this doctrine contravene the right of preventing vessels
fit>m entering a blockaded port. This right stands on other ground.
^heu the fleet of any nation actually beleaguers the port of the enemy,
no other has a right to enter their line, any more than their line of bat-
tle on the open sea, or their lines of circumvallation, or of encamp-
iQent, or of battle array on land. The space included within their
iines in any of thost> cases, is either the propertj^ of their enemy, or it
common property assumed and possessed for the tnoment, which cannot
^intruded on, even by a neutral, without committing the very tres-
pass we are now considering, that of intruding into the lawful posses-
won of a friend. • • •

'' But though we would not then, nor will we now, engage in war to
^tablish this principle [of free ships making free goods] we are never-
theless sincerely friendly to it. We think that the nations of Europe
kave originally set out in error ; that experience has proved the error
%re88ive to the rights and interests of the peaceable part of man-
^^Dd; that every nation but one has acknowledged this by consenting
to the change, and that one h9>s consented in particular cases ; that
i^ations have a right to correct an erroneous principle, and to establish
ttat which is right as their rule of action ; and, if they should adopt
Jneasures for effecting this in a peaceable way, we shall wish them
8^ccess, and not stand in their way to it. But should it become, at any
t^^^ expedient foi: us to co-operate in the establishment of this princi-
ple? the opinion of the executive, on the advice of its constitutional
8. Mis. ir»2— VOL. Ill 17 257

§ 342.] WAR. [chap. xyn.

counselors mast then be given, and that of the legislature, an inde-
pendent and essential organ in the operation, must also be expressed ; in
forming which they will be governed every man by his own judgment,
and may, very possibly, judge differently from the Executive. With
the same honest views, the most honest men often form different con-
clusions. As far, however, as we can judge, the principle of < free bot-
toms, free goods,' is that which would carry the wishes of our nation.'^

President Jefferson to Mr. Livingston, Sept. 9, 1801. 4 Jeff. Works, 406/1

'^ On th^ question whether the principle of ' free bottoms making free
goods and enemy bottoms enemy goods,' is now to be considered as estab-
lished in the law of nations, I will state to you a fact within my own
knowledge, which may lessen the weight of our authority as haviug
acted in the war of France and England on the ancient principle ^ that
the goods of an enemy.in the bottom of a friend are lawful prize, while
those of a friend in an enemy bottom are not so.' England became a
party in the general war against Prance on the Ist of February, 1793.
We took immediately the stand of neutrality. We were aware that
our great intercourse with these two maritime nations would subject as
to harassment by multiplied questions on the duties of neutrality, and
that an important and early one would be which of the two principles
above stated should be the law of action with us. We wished to act
on the new one of ' free bottoms, free goods ; ' and we had established
it in our treaties with other nations, but not with England. We deter-
mined, therefore, to avoid, if possible, committing ourselves on this
question until we could negotiate with England her acquiescence in
the new principle. Although the cases occurring were numerous, and
the ministers. Genet and Hammond, eagerly on the watch, we were
able to avoid any declaration until the massacre of St. Domingo. The
whites, on that occasion, took refuge on board our ships, then in their
hatbor, with all the property they could find room for, and on their
passage to the United States many of them were taken by British
cruisers and their cargoes seized as lawful prize. The inflammable
temper of Genet kindled at once, and he wrote with his usual passion
a letter reclaiming an observance of the principle of < free bottoms, fre^
goods,' as if already an acknowledged law of neutrality. I pressed him.
in conversation not to urge this point ; that although it had been acted,
on by convention, by the armed neutrality, it was not yet become s^
principle of universal admission ; that we wished indeed to strengthen,
it by our adoption, and were negotiating an acquiescence on the part;
of Great Britain ; but if forced to decide prematurely, we must justif5'
ourselves by a declaration of the ancient principle, and that no general
consent of nations had as yet changed it. He was immovable, and on
the 25th of July wrote a letter so insulting that nothing but a deter-
mined system of justice and moderation would have prevented his being
shipped home in the first vessel. I had the day before answered his of
the 9th, in which I had been obliged in our own justification to declare
that the ancient law was the established principle, still existing and
authoritative. Our denial, therefore, of the new principle and^ action
on the old one were forced upon us by the precipitation and intemper-
ance of Genet, against our wishes and against our aim ; and our invol-
untary practice, therefore, is of less authority against the new rnle.'^

Mr. Jefferson to Mr. Everett, Feb. 24, 1623. 7 Jeff. Works, 271.
9RR

CHAP. XVII.] SEIZURE OP GOODS AT SEA. [§ 342.

^*On the snbjeot of ^free ships, free goods,' the United States cannot,
with the same consistency as some othev nations, maintain the principle
as already a part of the law of nations, having on one occasion admitted
and on another stipulated the contrary. They have, however, invari-
ably maintained the atility of the principle, and whilst as a pacific and
commercial nation they have as great an interest in the due establish-
ment of it as any nation whatever, they may with perfect consistency
promote snch an extension of neutral rights. The northern powers,
Bnssia among the rest, having fluctuated in their conduct, may also be
tmder some restraints on this subject. Still they may be ready to renew
their concurrence in voluntary and conventional arrangements for giving
validity to the principle, and in drawing Great Britain into them."

Mr. MadiflODy Sec. of State, to Mr. ArmstroDg, Mar. 14, 1806. MSS. Inst., Min-
isters. See also President Madison to Mr. IngersoU, Jaly 28, 1814. 2 Madi-
son's VITritings, 585.

'^It is also desirable to stipulate with the British Government that
free ships shall make free goods, though it is proper to remark that the
importance of this rule is much diminished to the United States by
their growth as a maritime power, and the capacity and practice of their
merchants to become the owners of the merchandise carried in our
vessels. It is nevertheless still important to them, in common with all
neutral nations, as it would prevent vexatious seizures by belligerent
emisers, and unjust condemnations by their tribunals from which the
United States have sustained such heavy losses."

Mr. Monroe, Sec. of State, to Bir. Adams, May 21, 1816. MSS. Inst., Ministers.

^ has grown to be a usage among maritime nations that a belligerent
"^Vtake the property of his enemy from a neutral ship, "paying the
neotral his freight, and submitting the question of facts to the tribunals
^ the belligerent party. It is evident, however, that this usage has
nofonnclatioii in natural right,'' and is subject to limitation in special
teaties.

Mr. Adams, Sec. of State, to Mr. Anderson, May 27, 1823 (MSS. Inst;., Ministers),
in which letter the question is discassed at great length.

^^This search for and seizure of the property of an enemy in the
^^^ of a friend is a relic of the barbarous warfare of barbarous
^ the cruel, and, for the most part, now exploded system of private
^^* As it concerns the enemy himself, it is inconsistent with the
litigated usage of modern wars, which respects the private property
^^individuals on the land. As relates to the neutral, it is a viola-
^onof his natural right to pursue, unmolested, his peaceful commercial
intercourse with his friend. Invidious as is its character in both these
. '^cts, it has other essential characteristics equally obnoxious. It is
*n uncontrolled exercise of authority by a man in arms over a man
^thont defense^ by an officer of one nation over the citizen of another ^

260

^ 342.J WAR. [chap, xvn

by a man intent upon the annoyance of his enemy ; responsible for the
act of search to no tribunal, aud always prompted to balance the dis-
appointment of a fruitless search by the abusive exercise of his power,
and to punish the neutral for the very clearness of his neutrality. It
has, in short, all the features of unbridled power stimulated by hostile
and unsocial passions."

Mr. Adams, Sec. of State, to Mr. Canning, June 24, 1823. M8S. Notes, For. Leg.

^' It has been remarked that by the usages of modern war the private
property of an enemy is protected from seizure aud confiscation as such;
and private war itself has been almost universally exploded upon the
land. By an exception, the reason of which it is not easy to perceive,
the private property of an enemy upon the sea has not so fully received the
benefit of the same principle. Private war, banished by the tacit and
general consent of Christian nations from their territories, has taken its
last refuge upon the ocean, and there continued tp disgrace and afflict
them by a system of licensed robbery, bearing all the most atrocious
characters of piracy. To a Government intent, from motives of general
benevolence and humanity, upon the final and total suppression of the
slave trade, it cannot be unreasonable to claim her aid and co-operation
to the abolition of private war upon the sea.

'^ From the time when the United States took their place among the
nations of the earth, this has been one of their favorite objects.

" 'It is time,' said Dr. Franklin, in a letter of 14 March, 1785, *it is
high time for the sake of humanity that a stop were put to this enor-
mity.. The United States of America, though better situated than any
European nation to make profit by privateering, are, as far as in them
lies, endeavoring to abolish the practice by offering in all their treaties
with other powers an article engaging solemnly that in case of future
war no privateer shall be commissioned on either side, and that un-
armed merchant ships on both sides shall pursue their voyages unrno*
lested. This will be a happy improvement of the law of nations. The^
humane and the just cannot but wish general success to the proposi-
tion.' • • •

'^The ninth article contains the usual list of contraband of war,
omitting the articles used in the construction or equipment of vessels.
These articles are not included in the principle upon which contraband
of war was originally founded. Several of them are articles of ordi-
nary export from the United States, and the produce of their soil and
industry. Others are articles equally important to the commerce of
other nations, particularly Bussia, whose interests would be unfavorably
aifected b}' embracing them in the contraband list. The first effect of
including them in a list of contraband with one nation while the^' are
excluded from the same list in treaties with others, is that the belliger-
ent with whom they have been stipulated as contraband acquires, so
far as the treaties are observed, an exclusive market for the acquisition

260

CHAP. XVII.] SEIZURE OP GOODS AT SEA. [§ 342.

of the articles of which the other belligerent is deprived. The nes:t
consequence is that the other belligerent^ anffering under the double
injury of this contradictory rule, breaks through the obligation of her
own treaty and seizes and confiscates upon the principle ot retaliation
upon the enemy. This observation applies to every other point of
maritime law in which the neutral interest is sacrificed to the belliger-
ent interest with the one power, while the reverse is stipulated with
the other. The uniform and painful experience which we have had of
this should operate as a warning to the Government of the United
States to introduce the harmony of one congenial system into their fed-
erative relations with foreign powers, and never to concede as maritime
light to one power a principle the reverse of which they have stipu-
lated with others.

^^The tenth article of the draft proposes the adoption of the princi-
ple that free ships make free goods and persons, and also that neutral
property shall be free, though laden in a vessel of the enemy. The
OoverDment of the United States wish for the universal establishment
of thU principle as a step towards the attainment of the other, the total
abolition of private maritime war.''

Mr. Adams, Sec. of State, to Mr. Rush, July S8, 1823. MSS. Inst., Ministers.

The proposition to abolish by treaty private war by sea, and to restrict contra-
band, was sent at the same time by Mr. Adams to all the leading Earopean
states. It was, however, never acted on so as to bind the United States,
except in cases of special treaty.

** The principle upon which the Government of the United States
iiow offers this proposal to the civilized world is, that the same pre-
cepts of justice, of charity, and of peace, under the influence of which
Christian nations have, by common consent, exempted private property
on shore firom the destruction or depredation of war, require the same
^emption in favor of private property upon the sea. If there be any
ohjectioQ to this conclusion, I know not in what it consists ; and if any
should occur to the Russian Government, we only wish that it may be
n»ade a subject of amicable discussion."

Mr. Adams, Sec. of State, to Mr. Middleton, Aug. 13, 1823. MSS. Inst., Min-
isters.

^^It will be within the recollection of the House that immediately
*fterthe close of the war of our independence a measure closely an-
alogous to this congress of Panama was adopted by the Congress of
our Confederation, and for purposes of precisely the same character.
^^ commissioners, with plenipotentiary powers, were appointed to
^^tiate treaties of amity, navigation, and commerce with all the prin-
cipal powers of Europe. They met and resided for about one year for
that purpose at Paris, and the only result of their negotiations at that
^nie was the first treaty between the United States and Prussia, mem-
ia the diplomatic annals of the world, and precious as a monumc'^t

261

^ 342.] WAR. [chap. xvn.

of the principles in relation to commerce and maritime warfare, with
which our country entered upon her career as a member of the great
family of independent nations. Xhis treaty, prepared in conformity
with the instructions of the American plenipotentiaries, consecrated
three fundamental principles of the foreign intercourse which the Con-
gress of that period were desirous of establishing. First, equal reci-
procity, and the mutual stipulation of the privileges of the most favored
nation in the commercial exchanges of peace ; secondly, the abolition
of private war upon the ocean ; and thirdly, restrictions favorable to
neutral commerce upon belligerent practices with regard to contraband
of war and blockades. A painful, it may be said a calamitous, experi-
ence of more than forty years has demonstrated the deep importance
of these same principles to the peace and prosperity of this nation
and to the welfare of all maritime states, and has illustrated the pro-
found wisdom with which they were assumed as cardinal points of the
policy of the TJnion.^^

Preftident J. Q. Adams, Special Meesage, March 15, 1826.

" Previous to the war which grew out of the American Revolution,
the respective rights of neutrals and belligerents had been settled and
clearly defined by the conventional law of Europe, to which all the
maritime powers had given their sanction in the treaties concluded
among themselves. The few practical infractions, in time of war, of the
principles thus recognized by them, have been disavowed, upon the
return of peace, by new stipulations again acknowledging the exist-
ence of the rights of neutrals as set down in the maritime code.

^^In addition to the recognition of these rights by the European
X>owers, one of the first acts of the United States, as a nation, was
their unequivocal sanction of the principles upon which they are
founded, as declared in their treaty of commerce of 1778 with the
King of France. These principles were that free ships gave freedom
to the merchandise, except contraband goods, which were clearly de-
fined, and that neutrals might freely sail to and between enemies^
ports, except such as were blockaded in the manner therein set forth.
These principles having thus been established by universal consent^
became the rule by which it was expected that the belligerents would
be governed in the war which broke out about that time between
France and Spain on the one hand, and Great Britain on the other.
The latter power, however, having soon betrayed a disposition to de-
viate from them in some of the most material points, the Governments
which had preserved a neutral course in the contest became alarmed
at the danger with which their maritime rights were threat'ened bj
the encroachments and naval supremacy of England, and the Empress
of Russia, at their head, undertook to .unite them in the defense of
those rights. On the 28th February, 1780, she issued her celebrated
declaration, containing the principles according to which the com-

262

CHAP. XVII.] SEIZURE OP GOODS AT SEA. [§ 342.

manders of her naval armaments would be instructed to protect the
neutral rights of her subjects. Those principles were as follows :

^^ Ist. Neutral vessels may freely sail firom port to port, and on the
coasts of the nations parties to the war.

'^ 2d. The goods belonging to the subjects of the said nations are,

with the exception of contraband articles, free on board neutral vessels.

^'3d. With respect to the definition of contraband articles, the Em*

press adheres to the provisions of the 10th and 11th articles of her

treaty of commerce with Oreat Britain, and extends the obligations

therein contained to all the nations at war.

'' 4th. To determine what constitutes a blockaded port, this denomi-
natioD ifi confined to those th#entrance into which is manifestly ren-
dered dangerous in consequence of the dispositions made by the attack-
ing power with ships stationed and sufftciently near.

^^5th. These principles ar^ to serve as a rule in proceedings and
judgments with respect to the legality of prizes.

''This declaration was communicated to the belligerent Governments
^th a request that the principles it contained should be observed by
them in the prosecution of the war. From France and Spain it received
the most cordial and unequivocal approbation, as being founded upon
the maxims of public law which had been their rule of conduct. Great
Britain, without directly approving or condemning those maxims,
promised that the rights of Russia would be respected agreeably to.
eiistiDg treaties. The declaration was likewise communicated to the
other European powers, and the accession by treaties or solemn dec-
larations of Denmark, Sweden, Bussia, Holland, Austria, Portugal,
and the two Sicilies to the principles asserted by the Empress of Eussia,
formed the league, which, under the name of * armed neutrality,'
undertook to preserve inviolate the maritime rights of neutrals.

"Whatever may have been the conduct of the belligerents in that war
^ith respect to the rights of neutrals as declared by the armed neu-
^%, the principles asserted by the declaration of the Empress
Catharine were again solemnly recognized by the treaty of peace con-
<^nded by Great Britain and France at Versailles on the 3d Septem-
"^'j 1783. Among the several treaties thereby renewed and confirmed
^as that of Utrecht, in 1713, by which the same contracting parties
had, nearly a century before, given the most solemn sanction to the
principles of the armed neutrality, which were thus again proclaimed
y the most deliberate acts both of belligerents and neutrals as form-
^ogthe basis of the universal code of maritime legislation among the
^aval powers of the world.

'*Snch may be said to have been the established law of nations at the
Period of the peace of 1783, when the United States, recognized as in-
dependent by all the powers of the earth, took their station amongst
them. These principles, to which they had given their sanction in their
^ties with France in 1778, were again confirmed in those of 1782 ml\\

263

§ 342.] WAB. [chap, xvil

Sweden, aud in 1785 with Prassia, and continaed, uncontro verted by
other nations, until the wars of the French Bevolation broke out and
became almost general in Eorope in 1793. The maxims then advanced
by Great Britain in her instructions to her naval commanders and in
her orders in council regulating their conduct and that of her priva-
teers with regard to neutrals, being in direct contravention of the prin-
ciples set forth in the declaration of the armed neutrality and in her
own treaty stipulations, compelled the European powers which had re-
mained neutral in the contest to unite again for the protection of their
rights. It was with this view that the Emperor Paul, of Russia, ap-
pealed to these powers, and that, at his instance, making common cause
in behalf of the general interests of nations, Bussia, Sweden, Denmark,,
and Prussia united in a new league of armed neutrality, bound them-
selves by new treaties, reasserted the principles laid down in the declara-
tion of 1780, and added thereto some new^lauses extending still farther
the privileges of neutral commerce."

Mr. Van Baren, Sec. of State, to Mr. Randolph, Jaae 18, 1830. M8S. Inst.,^
Ministers.

^^That the neutral flag shall protect all the property on board is not
established from any fanciful idea that the cargo is supposed to bo
neutral because it is covered by a neutral flag, l^o such fiction is ad-
mitted even in argument. That hostile property is found in neutral
^hips is supposed by the rule, and it is protected, not because the flag
is supposed to change it into neutral property, but for the extension o£
commerce, for avoiding some of the evils of war, and principally for th(

purpose of protecting the merchant ships of the parties from vexation
visits, seizures, and arrests. The rule would be more correctly exi —
pressed by saying the neutral flag shall protect hostile property tha
by the phrase j^tfc ships make free goods — a figurative expression whic
considered in a literal sense, has given rise to the false deduction
are considering. The reasoning^is, if free ships make free goods, th^:Bi
the goods derive their character from the vessel. Then, if a neutrsi?*!
bottom makes the cargo neutral, though it belong to an enemy, by tlza^e
same rule a belligerent bottom must make the cargo hostile property,
though it belong to a friend.

" It will rarely happen that, as a neutral nation, we shall ever find- it
convenient to use the vessels of a belligerent as our carriers. But it is
our interest to give every possible extension and freedom to commen^^ ;
therefore, although you are to endeavor to procure the last-mentioii.*^d
modification, yet you are not to make it a point in your negotiati^**
should the principle in its full extent that the neutral flag shall prot^^^
hostile property be admitted, and that, on the contrary, neutral prop-
erty found in an enemy's ship shall be safe. Then it will be well ^
make a positive stipulation of both parts of the rule (as is done in ^^^
our treaties with the Barbary powers), because, although by the ^^

264

CHAP. XVIL] seizure OF GOODS AT SEA. [§ 342.

knowledged law of nations neutral property in a hostile bottom m pro-
teeted^yet in a case arising between two powers who had acknowledged
the principle that free ships make free goods by treaty, the same process
of erroneous reasoning I have x>ointed out might perhaps be employed
to show that, as between them, the false consequence should follow of
making neutral property good prize in an enemy's ship.

Mr. Liyiogston, Sec. of State, to Mr. Bachanan, Kov. 22, 1832. MSS. Inst.,
Ministers.

"The British, in case of war, seize every vessel in their ports belong-
ing to the enemy. With this single exception, the relic of an age of
barbarism and piracy, and which makes part of the King's droits of
admiralty, I am not aware that any civilized nation does at this time,
even in case of war, seize the property of private individuals which in
time of peace had been trusted to the hospitality and good faith of
the country. I am certain that the United States never were guilty of
SQch an act as a nation, neither in 1793, when the British were plunder-
iog withoQt notice our West India trade, and when an unsuccessful
motioQ to that effect was made, never to be again repeated, nor in 1798,
at the time of the greatest excitement and quasi-war against France,
Dorwhen war was declared against England, in 1812. Since the motion
of 1793, which, if brought to the test, would have been indignantly re-
jected, daring the various periods when our trade was exposed to the
^^redations of one or both the belligerents amongst all the devices
Md expedients proposed in order to avoid war, never was the iniqui-
toas proposal of seizing property confided to the protection of our laws
^in saggested. And I trust that, whilst so much is said of what is
<iQe to the honor of the nation (how applicable to the present state of
things is another question), such truly dishonorable act is not in con-
templation.

"The preceding observation 18 strictly correct with respect to seiz-
^^ in time of peace, and is intended to show the gross impropriety of
^^Pposing that such seizures are a peace measure. 1 admit that they
^/ive sometimes taken place in time of war. Such was the sequestra-
Jon by several of the States of the British debts during the war of In-
j^^pendence. Bussia also suspended the payment of the interest on a
l^Q formerly contracted in Holland whilst she was at war with France,
^^ which Holland had become a province. Yet these are not examples
jor imitation. The seizure without violence* of property belonging to
^reoffending Government and not to individuals would, I think, be 1p-
Sitimate in some cases.

'*With respect to letters of marque and reprisal, if we were to jud^^o
^1^ the act on the immutable principles of justice and in conformity with
those which regulate the conduct of nations by land, private war of
^^^ry description most be disallowed altogether. But we are com-
PeDed, in this as in many other instances, to recur to the practice of
^^tions, to their actual practice at this time, and not to what it was in
^rotins»8 time, or even in that of Vattel, who has, by the bye, often
^piedthe first writer without attending to changes which had since
t^ten place, and asserted doctrines which in practice were already ob-
^lete. The change in this case has been produced by the progress of
^^zation, and may,in fact, be considered as an amelioration.

*^ltis undeniable that at present general letters of marque and re-
prisal are war to all intents and purposes, that they are never granted

265

4 342.] WAR. [chap, xvil

bat in consequence of an existing war, or as a way of making war
witboat a formal declaration. Both the Seven Years' War, and that of
1778 between France and England, commenced in that way, and were
long so 'continued before war was actually declared.

'< It is equally true that special letters of reprisal granted to injured
individuals and authorizing them to capture at sea an equivalent for
their losses from subjects of the offendiiig oountryi have fallen into en-
tire disuse. Some cases may have escaped my notice. I recollect no
one instance (in time of peace) since Cromwell. In short, the present
practice or law of nations admits private war by sea (privateering) in
time of war; never in time of peace, any more by sea than by land."

Mr. GaUatin to Mr. Everett, Jan. 5, 1835. 2 Gallatin's Writings, 476.

The treaty provision that free ships make free goods, ^' having been
agreed to with Spain when Colombia was in Spanish possession, con-
tinued obligatory on that country not only so long as it remained sub-
ject to Spain, but after it had achieved its independence and had been
acknowledged by the United States."

Mr. Forsyth, Seo. of State, to Mr. Semple, Feb. 13, 1839. MSS. Inst., Colombia.

<^ The treaty of 1828, between the United States and Prussia, recog-
nizes the rule that free ships shall make free goods. It does not stipu-
late, however, that the converse of this rule, namely, that enemy's
ships shall make enemy's goods, shall be inoperative. • • •

*' Merchants domiciled and carrying on business in a country at war
with another, must be regarded as enemies. This rule has even been
applied to citizens of the United States engaged in commerce in an
enemy's country. • • •

^^ The liability of this Government to make amends to those Prussian,
subjects who complained of maltreatment and robbery by soldiers i
the service of the United States in Mexico, cannot be acknowledged.''

Mr. Marcy, Seo. of State, to Baron Gerolt, Feb. 15, 1854. MSS. Notes, Prussia

^^ The propositions submitted to you — ^the same, I presume, which Mr^ ^
Crampton has confidentially submitted to me — are, Ist, that free ship^^
make free goods, except .articles contraband of war; and, 2d, tha^^t
neutral property, not contraband, found on board enemies' ships is n
liable to confiscation. The United States have long favored the
trine that the neutral flag should protect the cargo, and endeavored
have it regarded and acted on as a part of the law of nations. The
is now? I believe, a fair prospect of getting this soand and saluta
principle incorporated into the international code.

" There can be, I presume, no doubt that France cheerftilly coucu_ :^c
with Great Britain in aciopting this principle as the rule of conduct ^ ^
the pending war. I have just received a dispatch from Mr. Mason, "» J
which he details conferences he has had with the French ministers ^::^">
the subject of neutral rights ; but it does not appear from the accoui3^ ^^
he has given of them that the French Government had intimated to li.
the course it intended to pursue in regard to neutral ships and uen

266

CHAP. XVU.] SEIZURE OF GOOD8 AT SEA. [§ 342.

property on board enemies' ships. I have no doubt, however, that
Prance has more readily acquiesced in the indicated policy than Great

Britain.''

Mr. Maroy, Seo. of State, to Mr. Bachanan, Apr. 13, 1854. M8S. Inst., Gr.
Brit. Honse Ex. Doo. 103, 33d Cong., Ist bobs.

'^The right of search has heretofore been so freely used, and so much
abased, to the injury of our commerce, that it is regarded as an odious
doctrine in this country, and if exercised against us harshly in the ap-
proaching war will excite deep and wide-spread indignation. Oaution
on the part of belligerents in exercising it towards us, in cases where
sanctioned by usage, would be a wise procedure. As the law has been
declared by the decisions of courts bf admiralty and elementary writers,
it allows belligerents to search neutral vessels for articles contraband
of war, and for enemies' goods. If the doctrine is so modified as to ex-
empt from seizure and confiscation enemies' property under a neutral
flag, still the right to seize articles contraband of war, on board of neu-
tral vessels, implies the right to ascertain the character of the cargo.
If used for such a purpose and in a proper manner, it is not probable
that eerions collisions would occur between neutrals and belligerents.

*^A persistent resistance by a neutral vessel to submit to a search
fenders it confiscable, according to the settled determinations of the
^QgUsh admiralty. It would be much to be regretted if any of our
vessels should be condemned for this cause, unless under circumstances
^hich compromitted their neutrality."

IMd.

^'Bnssia has always been foremost among the maritime European
powers to respect neutral rights, and this Government does not enter-
^1q a doubt that she will in the present conflict maintain the liberal
spirit which has hitherto distinguished her conduct towards neutral
i*<>wer8. In the earliest period of this Bepublic, attempts were made
^^ procure the recognition of the doctrine that * free ships make free
Soods' as a principle of international law ; but those attempts were un-
^^ailing, and up to this time enemies' property on board of a neutral
^^ssel has been held liable to seizure and confiscation. Eussia has the
^«ritof having favored the liberal view of this question ; France has
*^n willing to concede the doctrine, but Great Britain strenuously re-
futed. Her maritime ascendency has inclined her to maintain extreme
^^xitrines in regard to belligerent rights. It may now be regarded as a
^^ttled principle of maritime law that a neutral flag does not protect
^H the property under it. Notwithstanding this rule ir is now quite
^rtaintbat both Great Britain and France in the war in which they
^^ likely to be engaged will consent to refrain from the seizure of any
property which may be found under the flag of a neutral nation except
^^cles that are contraband of war. They will also respect tbe prop-
^) if not contraband, of a neutral owner found on board of an enemy's

§ 342.] . WAR. [chap, xvil

ship. This, however, is no concession to neutrals, for the international
code protects their property thus situated."

Mr. Marcy, Sec. of State, to Mr. de Stoeckl, Apr. 14, 1854. MSS. ^otes, Rnssia.

*^ You will observe that there is a suggestion in the inclosed for a
convention among the principal maritime nations to unite in a declara-
tion that free ships should make free goods, except articles contraband
of war. This doctrine has had heretofore the sanction of .Russia, and
no reluctance is apprehended on her part to becoming a partner to such
an arrangement. Great Britain is the only considerable power which
has heretofore made a sturdy opposition to it. Having yielded it for
the present in the existing war, she thereby recognizes the justice and
fairness of the principle, and would hardly be consistent if she should
withhold her consent to an agreement to have it hereafter regarded as a
rule of international law."

Mr. Marcy, Sec. of StAte, to Mr. Seymoar, May 9, 1854. MSS. Inst., Boasia.

^' You are aware that this Government has strenuously contended
that free ships should make free goods, articles contraband of war ex-
cepted. Great Britain is believed to be almost the only maritime power
which has constantly refused to regard this as a rule of international
law, and her policy in this respect may, it is presumed, be ascribed
rather to a consciousness of power, than a sense of right. The admi-
ralty courts of the United States have followed English precedents in
their decisions against this rule. It has, however, been expressly rec-
ognized in several treaties between the United Stat-es and France."

Mr. Marcy, Sec. of State, to Mr. Mason, Ang. 7, 1854. MSS. Inst., France.

<< The Government of the United States, as you are aware, has stren-
uously contended for the doctrine that free ships make free goods, con •
traband articles excepted. There is not, I believe, a maritime powei
which has not incorporated it in some of its treaties ; but Great Britain,
which is the most considerable of them, has constantly refused to re-
gard it as a rule of international law. Her admiralty courts have re-
jected it and ours have followed after them. When Great Britain and
France, at the commencement of the present war with Bussia, agreed
to act upon, that principle for the time being, this Government believed
that a fair occasiot^ was presented for obtaining the general consent of
commercial nations to recognize it as a principle of thQ law of nations."

Mr. Marcy, Sec. of State, to Mr. Buchanan, Aug. 7, 1854. MSS. Inst., 6r. Brit.

The objections by the Government of the United States, to the dec-
laration of the Paris conference of 1856 are that (1) " All the four prop-
ositions must be taken or none;" (2) they limit the future sovereign
power of the parties concerned ; (3) they exact the surrender of priva-
teering, a surrender the United States cannot make ; (4) they do not
exempt private property of non-belligerents from confiscation.

Mr. Marcy, Sec. of State, to Mr. Seibels, July 14, 1856. MSS. Inst., Belgium.
As to declaration of Paris, see 144 Edinb. Rot., 353.

268

CHAP. XVII.] 8EIZUBE OF GOODS AT SEA. [§ 342.

" YoQ are instructed by the President to propose to the Government
of Mexico to enter into an arrangement for its adherence with the
United States to the foor principles of the declaration of the congress,
provided the first of them is amended, as specified in my note to the
Count de Sartiges. Without such amendment, the President is con-
strained for many weighty reasons, some of which are stated in that
note, to decline acceding to the first principle of the ^ declaration.'
The President, however, will readily give his consent to the remaining
three principles." ^

>lr. Marcy, Sec. of State, to Mr. Fonyth, Aug. S9, 1856. MSS. Inst., Mez.

^^Long experience has shown that, in general, when the principal
powers of Europe are engaged in war, the rights of neutral nations are
endangered. This consideration led, in the progress of the war of our
independence, to the formation of the celebrated confederacy of armed
neutrality, a primary object of which was to assert the doctrine that
^ ships make free goods, except in the case of articles contraband of
war; a doctrine which, from the very commencement of our national
being, has been a cherished idea of the statesmen of this country. At
one period or another every maritime power has, by some solemn treaty
stipolatioQ, recognized that principle ; and it might have been hoped
that it would come to be universally received and respected as a rule
of international law ; but the refusal of one power prevented this, and
in the next great war which ensued, that of the French Bevolutiou, it
&iled to be respected among the belligerent states of Europe. Not-
withstanding this, the principle is generally admitted to be a sound and
^latary one; .so much so that at the commencement of the existing
war in Europe, Great Britain and France announced th^r purpose to
observe it for the present; not, however, as a recognized international
^ght, bat as a mere concession for the ti^e being. The co-operation,
however, of these two powerful maritime nations in the interest of neu-
tial rights appeared to me to afford an occasion inviting and justifying,
on the part of the United States, a renewed effort to make the doctrine

•

^ question a principle of international law, by means of special con-
Teutions between the several i^owers of Europe and America. Accord-
i'^Rly, a proposition, embracing not only the rule that free ships make
^ goods, except contraband articles, but also the less contested one,
that neutral property other than contraband, though on board enemy's
ships, shall be exempt from confiscation, has been submitted by this
&>vemment to those of Europe and America.

'^Bnssia acted promptly in this matter, and a convention was con-
^hded between that country and the United States, providing for the
observance of the principles announced, not only as between themselves,
but also as between them and all other nations which shall enter into
^0 stipulations. None of the other powers have as yet taken final
^onon the subject. I am not aware, however, that any objection

269

§342.] WAB, [chap. XVIE

to the proposed stipalationfi has been made; bat, on the contrary, they
are acknowledged to be essential to the secarity of neatral commerce^
and the only apparent obstacle to thejr general adoption is the possi-
bility that it may be encumbered by inadmissible conditions.

^^ The King of the T^o Sicilies has expressed to oar minister at Naples
his readiness toconcar in oar proposition relative to neatral rights, and
to enter into a convention on that sabject."

President Pierce, Second Annnal Message, 1854. See 144 Edinb. Rct., 353.

<^ Soon after the commencement of the late war in Europe this Oov-
emment submitted to the consideration of all maritime nations two
principles for the security of neutral commerce; one, that the neutral
flag should cover enemies' goods, except articles contraband of warf
and the other, that neutraf property on board merchant vessels of bel-
ligerents should be exempt from condemnation, with the exception of
contraband articles. These were not presented as new rules of inter-
national law; having been generally claimed by neutrals, though not
always admitted by belligerents. One of the parties to the war —
Eussia — as well as several neutral powers, promptly acceded to these
propositions; and the two other principal belligerents. Great Britain
and France, having consented to observe them for the present occasion,
a favorable opportunity seemed to be presented for obtaining a general
recognition of them both in Europe and America.

'^ But Great Britain and France, in common with most of the states
of Europe, while forbearing to reject, did not affirmatively act upon the
overtares of the United States.

^< While the question was in this position, the representatives of Rus»
sia, France, Qreat Britain, Austria, Prussia, Sardinia, and Turkey, as-
sembled at Paris, took into consideration the subject of maritime rights,
and put forth a declaration containing the two principles which this
Government had submitted nearly two years before, to the considera-
tion of maritime powers, and adding thereto the following propositions i
' Privateering is and remains abolished,' and < blockades, in order to be
binding, must be effective, that is to say, maintained by a force suffi-
cient reaUy to prevent access to the coast of the enemy ; ' and to the
declaration thus composed of four points, two of which had already
been proposed by the United States, this Government has been invited
to accede by all the powers represented at Paris, except Great BritaiQ
and Turkey. To the last of the two additional propositions, that in re-
lation to blockades, there can certainly be no objection. It is merely
the definition of what shall constitute the effectual investment of a
blockaded place, a definition for which this Gk>vernment has always con-
tended, claiming indemnity for losses where a practical violation of the
rule thus defined has been injurious to our commerce. As to the re-
maining article of the declaration of the conference of Paris, ^ that pri-
vateering is and remains abolished,' I certainly cannot ascribe to the

270

CHAP. XVIL] 8EIZUBB OF GOODS AT SEA. [§ 3421

powers represented in the conference of Paris any bnt liberal and
ptiilaBthropic views in the attempt to change the nnqnestionable rnle
of maritime law in regard to privateering. This proposition was doubt-
less intended to imply approval of the principle that private property
upon the ocean, although it might belong to the citizen of a belligerent
state, shonld be exempted firom capture ; and had that proposition been
80 framed as to give fnU effect to the principle, it wonld have received
my ready assent on behalf of the United States. Bnt the measure pro-
posed is inadequate to that purpose. It is true that, if adopted, private
property upon the ocean would be withdrawn from one method of plun-
der, bat left exposed, meanwhile, to another mode, which could be used
with increased effectiveness. The aggressive capacity of great naval
powers would be thereby augmented, while the defensive ability of
others would be reduced. Though the surrender of the means of
prosecating hostilities by employing privateers, as proposed by the
conference of Paris, is neutral in terms, yet, in practical effect, it would
be the reliuquishment of a right of little value to one class of states,
bot of essential importance to another and a far larger class. It ought
not to have been anticipated that a measure so inadequate to the ac-
complishment of the proposed object, and so unequal in its operation,
would receive the assent of all maritime powers. Private property
woold be still left to the depredations of the public armed cruisers.

'^ I have expressed a readiness on the part of this Government to ac-
<^e to all the principles contained in the declaration of the conference
of Paris, provided that the one relating to the abandonment of privateer-
ing can be so amended as to effect the object for which, as is presumed,
it was intended, the immunity of private property on the ocean from
liostile capture. To effect this object, it is proposed to add to the dec-
i&n^Uon that ^privateering is and remains abolished,' the following
amendment:

*"And that the private property of subjects and citizens of a belliger-
ent on the high seas, shall be exempt from seizure by the public armed
vessels of the other belligerent, except it be contraband.' This amend-
Jnenthas been presented not only to the powers which have asked our
^^nt to the declaration to abolish privateering, but to all other mari-
time states. Thus far it has not been rejected by any, and is favorably
entertained by all which have made any communication in reply.

**8everal of the Governments, regarding with favor the proposition of
^c United States, have delayed definite action upon it only for the pur-
pose of Consulting with others parties to the conference of Paris. I
^ve the satisfaction of stating, however, that the Emperor of Russia
^as entirely and explicitly approved of that modification, and will co-
operate in endeavoring to obtain the assent of other powers; and that
assurances of a similar purport have been received in relation to the
^^position of the Emperor of the French."

IWdent Pierce, Foarth Annual Message, 1856.

271

§ 342.] WAB. [chap. XVII.

'^ It is unfortanate that various claims have been advanced and en-
forced by belligerent powers, in the prosecution of wars, for which it
would be vain to seek any sufficient justification in the law of nations,
and this consideration adds to the importance of some acceptable ar-
rangement by which this source of apprehension may be removed and
all danger of collision avoided by clearly defining the rights of the par-
ties in all doubtful cases.

" If the belligerent powers should substitute their own views for the
fair provisions of the general law, the most serious consequences may
be apprehended. It becomes all prudent Governments engaged in hos-
tilities to take into consideration the actual condition of public senti-
ment, whenever meaisures of doubtful character are proposed, and sat-
isfy themselves, not only that they are theoretically right, but that they
are also practically expedient. • • •

" With respect to the protection of the vessel and cargo by the flag
which waves over them, the United States look upon that principle as
established, and they maintain that belligerent property on board a
neutral ship is not liable to capture, and from existing indications they
hope to receive the general concurrence of all commercial powers in
this position. • • ♦

^' The countries engaged in the pending war have adopted a much
wiser policy. They hold on to the power of the flag to protect both vessel
and cargo from all violation, and have proclaimed by public declara-
tions their determination to respect the principle of exemption so hap-
pily established. And well is it, in the general interest, that this trib-
ute has been rendered to the opinions of the age. The stopping or
neutral vessels upon the high seas, their forcible entrance, and the over-
hauling and examination of their cargoes, the seizure of their freight
at the will of a foreign officer, the frequent interruption of their voy-
ages by compelling them to change their destination in order to seek
redress, and above all the assumption of jurisdiction by a foreign armed
party over what has been aptly termed the extension of the territory
of an independent state, and with all the abuses which are so prone to
accompany the exercise of unlimited power, where responsibility is re-
mote, these are indeed serious ' obstructions' little likely to be submitted
to in the present state of the world without a formidable effort to pre-
vent them. • • •

'^ It is not necessary that a neutral power should have announced its
adherence to this declaration (of Paris) in order to entitle its vessels to
the immunity promised. • • ♦

" The United States, indeed,,declined to become a party to the Paris
conference, though that circumstance does not affect the position they
occupy."

Bir. Cass, Sec. of Stat«, to Mr. Mason, June 17, 1859. MSS. Inst., FraQoe. ttee
144 Ed. Rev., 353.

272

CHAP. XVII.] SEIZURE OF GOODS AT SEA. [§ 342.

The following papers were communicated to Congress by President
Lincoln in connection with his aunaal message of 1861:

^^Mr. Seward, Secretary of State, to ministers of the United States in Great
Britain, France, Russia, Prussia, Austria, Belgium, Italy, and Den-
mark.

"Dbpabtment op State,

<' Washington, April U, 1861 .

^^The advocates of benevolence and the^ believers in hnman progress^
encouraged by the slow thongh marked meliorations of the barbarities
of war which have obtained in modem times, have been^ as you are
weU aware, recently engaged with mnch assidaity in endeavoring to
effect aome modifications of the law of nations in regard to the rights
of neutrals in maritiine war. In the spirit of these movements the
President of the United States, in the year 1854, submitted to the- sev-
eral maritime nations two propositions, to which he solicited their as-
sent, as permanent principles of international law, which were as fol-

^'1. Free ships make free goods; that is to say, that the effects or
goods belonging to subjects or citizens of a power or state at war are
^ from capture or confiscation when found on board of neutral ves-
sels, with the exception of articles contraband of war.

"2. That the proi>erty of neutrals on board an enemy's vessel is not
subject to confiscation unless the same be contraband of war.

"Several of the Gtovemments to which these propositions were sub-
mitted expressed their willingness to accept them, while some others,
vhich were in a state of war, intimated a desire to defer acting thereon
until the return of i>eaGt^ should present what they thought would be
& more aaspicious season for such interesting negotiations.

'^On the 16th of April, 1856, a congress was in session at Paris. It
consisted of several maritime powers, represented by their plenipoten-
^^, namely, Great Britain, Austria, France, Russia, Prussia, Sardi-
nia, and Turkey. That congress having taken up the general subject
to which allusion has already been made in this letter, on the day be-
fore mentioned, came to an agreement, which they adopted in the form
of a declaration, to the effect following, namely:

^^1' Privateering is and remains abolished.

"2. The neutral flag covers enemy's goods, with the exception of
contraband of war.

"3. Central goods, with the exception of contraband of war, are not
liable to capture under enemy's flag.

**i Blockades, in order to be binding must be effective; that is to
^y? maintained by forces really sufficient to prevent access to the
^t of the enemy. ^

"The agreement pledged the parties constituting the congress to bring

"^« declaration thus made to the knowledge of the states which had not

8. Mis. 102--VOL. Ill 18 273

§ 342.] WAR. [chap. XV]

been represented in that body, and to invite them to accede to it. Tl
congress, however, at the same time insisted, in the first place, that tl
declaration should be binding only on the powers who were or should h
come parties to it as one whole and indivisible compact ; and, secondl
that the parties who had agreed, and those who should afterwards a
cede to it, should, after the adoption of the same, enter into no arrang
ment on the application of maritime law in time of war without stip
lating for a strict observance of the four points resolved by tl
declaration. •

" The declaration which I have thus substantially recited of cour
prevented all the powers which became parties to it from accepting tl
two propositions which had been before submitted to the maritime n
tions by the President of the United States.

''The declaration was, in due time, submitted by the Govemmen
represented in the congress at Paris to the Government of the Unit<
States.

** ITie President, about the 14th of July, 1856, made known to tl
states concerned his unwillingness to accede to the declaration. J
making that announcement on behalf of this Government, my pred
cesser, Mr. Marc3% called the attention of those states to the followii
points, namely:

" 1st. That the second and third propositions contained in the Pa
declaration are substantially the same with the two propositions wiii
had before been submitted to the maritime states by the President.

"2d. That the Paris declaration, with the conditions annexed, was
admissible by the United States in three respects, namely : 1st. Tfc
the Government of the United States could not give its assent to t
first proposition contained in the declaration, namely, that ** Privates
ing is and remains abolished ,'' although it was willing to accept
with an amendment which should exempt the private property of iJ
dividtlals, though belonging to belligerent states, from seizure or coi
fiscation by national vessels in maritime war. 2d. That for this reaso
the stipulation annexed to the declaration, viz, that the proposition
must be taken altogether or rejected altogether, without modiflcatioi
could not be allowed. 3d. That the fourth condition annexed to th
declaration, which provided that the parties acceding to it should entc
into no negotiation for any modifications of the law of maritime wa
with nations which should not contain the four points contained in tta
Paris declaration, seemed inconsistent with a proper regard to tbe ui
tional sovereignty of the United Sates.

''On the 29th of July, 1856, Mr. Mason, then minister of the Unit€
States at Paris, was instructed by the President to propose to the Go'
ernment of France to enter into an arraniremeut for its adherence, wil
the United Stages, tb the four principles of the declaration of the congre-
of Paris, provided the first of them should be amended as specified in M
Marcy's note to the Count de Sartiges on the 28th of July, 1856. M

274

CHAP. XVIL] seizure OF GOODS AT SEA. [§ 342.

Ma!^ou iiccordiDgly brought the subject to the notice of the Imperial Gov-
ernment of France, which was disposed to entertain the matter favorably,
but wbich failed to commnnicate its decision on the subject to him. Simi-
larinstmctions regarding the majtter were addressed by this Department
to Mr. Dallas, our minister at London, on the 31st day of January, 1857 ;
bat the proposition above referred to had not been directly presented
totbeBritish Government by him when the administration of this Gov-
erument by Franklin Pierce, during whose term these proceedings oc-
oorred, came to an end, on the 3d of March, 1857, and was succeeded
by that of James Buchanan, who directed the negotiations to be arrested
for the parpose o^enabling him to examine the questions involved, and
they have ever since remained in that state of suspension.

^'The President of the United States has now taken the subject into
consideration, and he is prepared to communicate his views upon it,
^th a disposition to bring the negotiation to a speedy and satisfactory
conclosion.

•' For that purx)ose you are hereby instructed to seek an early oppor-
touity to call the attention of her Majesty's Government to the subject,
^Q(l toiiscertain whether it is disposed to enter into negotiations for the
^^<^ce88iou of the Government of the United States to the declaration
of the Paris congress, with the conditions annexed by that body to the
^'Me; and if you shall find that Government so disposed, you will then
*nter into a convention to that efiect, substantially in the form of a
project for that purpose herewith transmitted to you ; the convention
to take effect from the time when the due ratifications of the same shall
^ave been exchanged. It is presumed that you will need no special
^plauation of the sentiments of the President on this subject for the
Pvrpo^ of conducting the necessary conferences with the Govemmeut
^ which you are accredited. It.s assent is expected on the ground that
^^^ proposition is accepted at its suggestion, and in the form it has pre-
ferred. For your own information it will be sufficient to say that the
^dent adheres to the opinion expressed by my predecessor, Mr.
^fcy, that it would be eminently desirable for the good of all nations
^hat the property and effects of private individuals, not contraband,
should be exempt from seizure and confiscation by national vessels in
maritime war. If the time and circumstances were propitious to a
proiiecotion of the negotiation with that object in view, he would direct
t^titsbould be assiduously pursued. But the right season seems to
^^ve passed, at least for the present. Europe seems once more on the
^crge of quite general wars. On the other hand, a portion of the
A^merican people have raised the standard of insurrection, and pro-
^Wmed a provisional Government, and, through their organs, have'
^''ikenthebad resolution to invite privateers to pre J' upon the peaceful
»>njinerce of the United States.

'* Prudence and humanity combine in persuading the President, un-
<icr tile circumstances, that it is wise to secure the lesser good ofEet^^l

276

§ 342.] WAB. [chap, xvil

by the Paris congress, withoat waiting indefinitely in hope to obtaiD
the greater one offered to the maritime nations by the President of the
United States.

I am, sir, respectfully, your obedient servant,

»* William H. Sbwabd.^

The same, mutatis nttttandM, to the ministers of the United States xxt
France, Eassia, Prussia, Austria, Belgium, Italy, and Denmark.

Convenitafi upofti fA« nv^eoi of ikt righU of helligerenU and neuiraU in Ume of toor, hetwta^
the United Statee of America and Her Majeety ike Queen qf Great Britain and Ireland,

The United States of America and Her Mijesty the Queen bf Great ^Britain and
Ireland, being eqaally animated by [i desire to define with more precision the rights*
of belligerent and neutrals in time of war, haye, for that purpose, conferred fall
powers, the President of the United States upon Charles F. Adams^ accredited a»
their envoy extraordinary and minister plenipotentiary to her said Mqjesty, and Her
Mt^esty the Queen of Great Britain and Ireland, upon .

And the said plenipotentiaries, after haying exchanged their full powers, have con-
cluded the following articles :

Articlb I.

1. Privateering is and remains abolished. 2. The neutral flag covers enemy's goods, —
with the exception of contraband of war. 3. Neutral goods, with the exception oftE=
contraband of war, are not liable to capture under enemy's flag. 4. Blockades, ii^
order to be binding, must be effective ; that is to say, maintained by a force tuffioien^B
cient really to prevent access to the coast of the enemy.

Aruclb II.

The present convention shall be ratified by the President of the United States f^*:^
America, by and with the advice and consent of the Senate, and by Her Mijesty th*^
Queen of Great Britain and Ireland, and the ratifications shall be exchanged at Wasls.—
ington, within the space of six months from the signature, or sooner if possible. Ex*
faith whereof, the respective plenipotentiaries have signed the present convention in
duplicate, and have thereto affixed their seals.

Done at London, the day of , in the year of our Lord one thousand

eight hundred and sixty-one (1861).

'< The rights which it asserts that France expects, as a nentral, from
the United States, as a belligerent, are even less than this Gk>vemnieiit,.
on the 25th of April, instrncted yon to concede and guarantee to her by
treaty, as a friend. On that day we offered to her our adhesion to the
declaration of Paris, which contains fonr propositions, namely: Ist
That privateering shall be abolished. 2d. That a neutral flag covers
enemy's goods not contraband of war. 3d. That goods of a neatral,
not contraband, shall not be confiscated though found in an enemy-s
vessel. 4th. That blockades, in order to be lawful, must be maintained
by competent force. We have always, when at war, conceded the three
last of these rights to neutrals, a fortiori j we could not when at peace
deny them to friendly nations. The first^named concession was pro-
posed on the grounds akeady mentioned. We are still ready to guar-

276

OHAP. XVII.] SEIZURE OF GOODS AT SEA. [§ 342.

antee these rights, by convention with France, whenever she shall
nathorize either yon or her minister here to enter into convention.
There is no reservation or difficulty about their application in the
present case. We hold all the citizens of the United States, loyal or
disloyal, alike included by the law of nations and treaties } and we hold
ourselves bound by the same obligations to see, so far as may be in our
power, that all our citizens, whether maintaining this Government or
engaged in overthrowing it, respect tIfSse rights in favor of Prance and
of every other friendly nation. In any case, not only shall we allow no
prirateer or national vessel to violate the rights of friendly nations as
1 have thus described them, but we shall also employ all our naval force
toprevenl the insurgents from violating them just as much as we do to
prevent them from violating the laws of our own country."

Mr. Seward, Seo. of State, to Mr. Dayton, June 6, 1861. MSS. Inst., France;
Dip. Corr., 1861.

^^Toa are aware that the declaration of Paris enjoins each of the
parties that had signed it not to negotiate any other changes of the law
of nations concerning the rights of neutrals in maritime wars. We
have supposed that this would operate to prevent Great Britain, and
probably France, from receiving our accession to the declaration if we
Ahonld insist on the amendment proposed by Mr. Marcy, namely, the
exemption of private property of non-belligerents from confiscation.
Bat we should now, as the instructions heretofore given you have
^ady informed you, vastly prefer to have the amendment accepted.
Nevertheless, if this cannot be done, let the convention be made for
Adherence to the declaration, pure and simple."

Mr. Seward, Sec. of State, to Mr. Sandford, June 21, 1861. MSS. Inst., Belgium.

"Tour dispatch No. 12 (dated June 22) has been received. It relates
to our proposition for accession to the declaration of Paris. This affair
hag hecome very much complicated, by reason of the irregular and ex-
traordinary proceeding of the French Government in proposing to take
notice of the domestic disturbance which has occurred in this country.
I do not know that even now I can clear the matter up effectually with-
out knowing what may be the result of the communication which, in my
dispatch No. 19, I instructed you to make to tlie French Government.
I ^11 try, nevertheless, to do so. The instructions contained in my
dispatch No. 4, dated 24th of April last, required you to tender to the
^nch Government, without delay, our adhesion to the declaration of
the congress of Paris, pure and simple.

"The reason why we wished it done immediately was, that we supposed
tte French Government would naturally feel a deep anxiety about the
f*ty of their commerce, threatened distinctly with privateering by the
uisnrgents, while at the same time, as this Government had heretofore
Persistently declined to relinquish the right of issuing letters of marque,
'Would be apprehended by France that we too should take up that form

277

§342.] WAR. [chap, xv:

of maritime warfare in the present domestic controversy. We appi
bended that the danger of such a case of depredation upon commer
equally by the Government itself, and by its enemies, would operate
a provocation to France and other commercial nations to recognize t
insurrectionary party in violation of our national rights and sovereigit
On the contrarj', we did not desire to depredate on friendly comme
ourselves, and we thought it our duty to prevent such depredations 1
the insurgents by executing our own laws, which make privateering^ 1
disloyal citizens piracy, and punish its pursuit as such. We thong- 1
it wise, just, and prudent to give, unasked, guarantees to France an
other friendly nations for the security of their commerce from exposu r
to such depredations on either side, at the very moment when we wex^
delivering to tbem our protest against the recognition of the insurgentrfi
The acdfession to the declaration of Paris would be the form in whi^:^!
these guarantees could be given — that for obvious reasons must be mo^^
unobjectionable to France and to other commercial nations than ar»^
other. It was safe on our part, because we tendered it, of course, as t
act of this Federal Grovernment, to be obligatory equally upon disloy
as upon loyal citizens.

" The instructions waived the Marcy amendment (which proposed to
empt private property from confiscation in maritime war), and requir^=5
you to propose our accession to the declaration of the congress of Pari
pure and simple. These were the reasons for this course, namely : Firtf=^
It was as well understood by this Government then, as it is now by yocra-
self, that an article of that celebrated declaration prohibits every one ^
the parties to it from negotiating upon the subject of neutral righ* i
iu maritime warefare with any nation not a party to it, except for 1 1^
adhesion of such outstanding part;^ to the declaration of the con
of Paris, pure and simple. An attempt to obtain an acceptance of !
Marcy's amendment would require a negotiation not merely with Fra
alone, but with all the other original parties of the congress of P*i"'
and every Government that has since acceded to the declaration. N »y
more; we must obtain their unanimous consent to the amendment be
fore being able to commit ourselves or to engage any other nation, hoW
ever well disposed, to commit itself to us on the propositions actiiaJI>'
contained in the declaration. On the other hand, each nation wbicii i^
a party to the declaration of Paris is at liberty to stipulate singly ^it b
us for acceptance of that declaration for the government of our mnun*^
relations. If, therefore, we should waive the Marcy proposition, or Icii^^
it for ultimate consideration, we could establish a complete agreement
between ourselves and France on a subject which, if it should bt» le'f*
oj)en, might produce consequences very much to be deprecated. It ^^
almost unnecessary to say that what we proposed to France was equally
and simultaneously proposed to every other maritime power. Iu tUi^
way we expected to remove every cause that any foreign power coa W
have for the recognition of the insurgents as a belligerent power.

CTHLAP. XVII ] SEIZURE OF GOODS AT SEA. [§ 342.

*-The matter stood in this plain and intelligible way until certain
deel<arations or expressions of the French Government induced you to
believe that they would recognize and treat the insurgents as a distinct
national power for belligerent purposes. It was not altogether unrea-
sonable that you, being at Paris, should suppose that this Government
would think itself obliged to acquiesce in such a course by the Govern-
meut of France. So assuming, you thought thctt we would not adhere
to our proposition to accede to the declaration, pure and simple,* since
such a course would, as you thought, be effective to bind this Govern-
ment without binding the insurgents, and would leave France "at liberty
to hold us bound and the insurgents ftee from the obligations created
by our adhesion. Moreover, if we correctly understand your dispatch
on that subject, you supposed that you might propose our adhesion to
the Treaty of Paris, not pure and simple, but with the addition ot the
Marcy proposition in the first instance, and might afterwards, in case
of its being declined in that form, withdraw the addition, and then pro-
pose onr accession to the declaration of Paris, pure and simple.

"While you were acting on these views on your side of the Atlantic,
we on this side, not less confident in our strength than in our rights, as
you are now aware, were acting on another view, which is altogether
(liferent, namely, that we shall not acquiesce in any declaration of the
Government of France that assumes that this Government is not now,
as it always has been, exclusive sovereign, for war as well as for peace,
within the States and Territories of the Federal Union, and over all
citizens, the disloyal and loyal all alike. We treat in that character,
which is our legal character, or we do not treat at all, and we in no
way consent to compromise that character in the least degree. We do
Dot even suffer this character to become the subject of discussion,
^ood faith and honor, as well as the same expediency which prompted
^ proffer of our accession to the declaration of Paris, pure and sim-
P^ in the first instance, now require us to adhere to that proposition
^i abide by it; and we do adhere to it, not, however, as a divided, but
**an undivided nation. The proposition is tendered to France not as
a neutral, but as a friend, and the agreement is to be obligatory upon
^^« United States and France and all their legal dependencies just
alike,

"The case was peculiar, and m the aspect in which it presented itself
^you portentous. We were content that you might risk the experi-
"^^nt, 80, however, that you should not bring any responsibility for
^% upon this Government. But you now see that by incorporating
the Marcy amendment in your proposition you have encountered the
^^ry diflBculty which was at first foreseen by us. The following nations
^^ parties to the declaration of Paris, namely: Baden, Bavaria, Bel-
?i«ni, Bremen, Brazil, Duchy of Brunswick, Chili, the Argentine Con-
federation, the Germanic Confederation, Denmark, the two Sicilies, the
^public of the Equator, the Roman States, Greece, Guatemala, Hayti,

279

§ 342.] * WAB. [chap, xvn

Hamburg, Hanover, the two Hesses, Labeck, Mecklenburg-Strelitz,
Mecklenburg-Schwerin, iNassau, Oldenburg, Parma, Holland, Peru,
Portugal, Saxony, Saxe-Altenburg, Saxe-Coburg-Gotba, Saxe-Meinin-
gen, Saxe- Weimar, Sweden, Switzerland, Tuscany, Wiirtemberg, An-
halt Dessau, Modena, New Granada, and Uruguay.

"The great exigency in our affairs will have passed away — ^for preser-
vation or destruction of the American Union — before we could bring
all these nations to unanimity on the subject, as you have submitted it
to Mr. Thouvenel. It is a time not for propagandism, but for energetic
acting to arrest the worst of all national calamities. We therefore
expect you now to renew the proposition in .the form originally pre-
scribed, but in doing this you will neither unnecessarily raise a question
about the character in which this Oovemment acts (being exclusive
sovereign), nor, on the other hand, in any way compromise that char-
acter in any degree. Whenever such a question occurs to hinder yon,
let it come up from the other party in the negotiation. It will be time
then to stop and wait for such further instructions as the new exigency
may require.

"One word more. You will, in any case, avow our preference for the
proposition with the Marcy amendment incorporated, and will assure
the Government of France that whenever there shall be any hope for
the adoption of that beneficent feature by the necessary parties as su
principle of the law of nations we shall be ready not only to agree to ^'t^
but even to propose it and to lead in the necessary negotiations

"This paper is, in one view, a conversation merely between yourselt^
and us. It is not to be made public. On the other hand, we confide
iu your discretion to make such explanations as will relieve yoursel:^
of embarrassments and this Government of any suspicion of inconsist:—
ency or indirection in its intercourse with the enlightened and friendly
Government of France."

Mr, Seward, Sec. of State, to Mr. Dayton, July 6, 1861. M8S. Inst., France ;
Dip. Corr., 1861.

The United States adheres to the following principles:

1st. The neutral flag covers enemy's goods, with the exception of
contraband of war.

2d. Neutral goods, not contraband of war, are not liable to confisca-
tion under enemy's flag.

3d. Blockades, in order to be binding, must be effective.

Mr. Seward, Sec. of State, to Mr. Jones, Aug. 12, 1861. MSS. Inst., Austria.

'* Tour dispatch of August 2 (No. 22) has been received. It is ac-
companied by a correspondence which has just taken place between
yourself and Lord John Russell, with a view, on your part, to remove
.possible obstructions against tbe entrance upon negotiations, with
which you have so long been charged, for an accession on our part to
the declnration of the congress in Paris on the subject of the rights or

280

CHAP. XVn.] SEIZURE OF GOODS AT SEA. [§ 342.

ncatrals in maritime war. It was also nnderstood by yon that a far-
ther result of thfe correspondence would be to facilitate, indirectly, the
opening of similar negotiations for a like object, by Mr. Dayton, with
the Government of France.

^'Yoar letter to Lord John Bussell is judicions, and is approved.
Lord John Russell's answer is satisfactory, with the exception of a single
passage, upon which it is my duty to instruct you to ask the British
secretary for foreign affairs for an explanation.

^^That passage is as follows :

^^'I need scarcely add that on the part of Oreat Britain the engage-
ment will be prospective, and will not invalidate anything already done.'

**A brief statement of the objects of the proposed negotiation will
bring the necessity for an explanation of this passage into a strong light.
We have heretofore proposed to other maritime states certain meliora-
tions of the laws of maritime war affecting the rights of neutrals.
The meliorations are : 1st. That the neutral flag shall protect enemy's
goods not contraband of war. 2d. That the goods of neutrals, not con-
traband, though found under an enemy's flag, shall not be confiscated.
3d. That blockades, to be respected, must be effective.

''The congress at Paris adopted these three principles, adding a
fourth, namely, that privateering shall be abolished. The powers which
coDstitnted that congress invited the adhesion of the United States to
tbat declaration. The United States answered that they would accede
on condition that the others powers would accept a fifth proposition,
namely, that the goods of private persons, non-combatants, should be
exempt from confiscation in maritime war.

" When this answer was given by the United States, the British Gov-
ernment declined to accept the proposed amendment, or fifth proposi-
tion, thas offered by the United States, and the negotiation was then
suspended. We have now proposed to resume the negotiation, offering
onr adhesion to the declaration of Paris, as before, with the amendment

which would exempt private property from confiscation in maritime

war.

*'The British Government now, as before, declares this ameudment
<>r fifth proposition inadmissible. It results that, if the United States
^^ at all become a party to the declaration of the congress of Paris by ,
^^ necessary consent of the parties already committed to it, this can
"^ done only by their accepting that declaration without any amend-
^^nt whatever ; in other words, ' pure and simple.' Under these cir-
*^8tances you have proposed, in your letter to Lord John Kussell, to
^^Sotiate our adhesion to the declaration in that form. It is at this
*^geof the affair that Lord John Russell interposes, by way of caution,
tk€ remark that * on the part of Great Britain the engagement will be
P^pective, and will not invalidate anything already done.'

'^I need dwell on this remark only one moment to show that, although
^^resded in a very simple form and in a quite casual manner, it con-

2S1

§ 342.] WAE. [chap. X

taius what amoants to a preliminary condition, which must be conce
by the United States to Great Britain, and either be inserted in
convention, and so modify our adhesion to the declaration of Paris
else must be in some confidential manner implied and reserved, v
the same effect.

" Upon principle this Government could not consent to enter into
mal negotiations, the result of which, as expressed in a convent
should be modified or restricted by a tacit or implied reservation. E
if such a proceeding was compatible with our convictions of propri
or of expediency, there would yet remain an insuperable obstacle in
wHy of such a measure.

^' The President can only initiate a treaty. The treaty negotiated i
come into life only through an express and deliberate act of ratificat
by the Senate of the United States, which ratification sanctions, in ]
case, only what is set down in the treaty itself. I am not, by any mes
to be understood in these remarks as implying a belief that Lord Ji
Bussell desires, expects, or contemplates the practice of any reserval
on the part of the United States or of Great Britain. The fact of
having given you the caution upon which I am remarking would
sufficient, if evidence were necessary, to exclude any apprehensioi
that sort. It results from these remarks that the convention into wt
we are to enter must contain a provision to the efifect that ' the engf
*ments ' to be made therein are, ' on the part of Great Britain, prosp
ive, and will not invalidate anything already done.'

'' I must, therefore, i^ow discuss the propriety of inserting such a g
ulation in the convention which you have been authorized to cons
mate. The proposed stipulation is divisible into two parts, nami
First. That the engagements of Great Britain are ' prospective' [oi

'*' I do not see any great objection to such an amendment. But ^
should it be importa.ntf A contract is always prospective, and p
pectlve only, if. it contains no express stipulation that it shall be re
spective in its operation. So much, therefore, of the stipulation a^
is unnecessary, while, if conceded, it might possibly give occasioi
misapprehension as to its effect. You will, therefore, decline to m
such a condition without first receiving a satisfactory explanation o
meaning and its importance.

'< The second part of the proposed condition is, that the / engagen
will not invalidate anything already done.' I am not sure that I sh(
think this proposed condition exceptionable, if its effect were clei
understood. It is necessary, however, to go outside of his lordsl
letter to find out what is meant by the words * anything already dc
If ' anything' pertinent to the subject 'has been already done' wl
ought not to be invalidated, it is clear that it must have been d
either by the joint action of the United States and Great Britain, oi
the United States only, or by Great Britain acting alone. There
been no iolnt action of the United States and Great Britain upon

282

CHAP. XVII.] SEIZURE OF GOODS AT SEA. [§ 342.

subject. The United States have done nothing affecting it ; certainly

notWng which they apprehend would be invalidated by the simple form

of conrention which they propose. I am left to conclnde, therefore,

tliat the * things which 'has been done already,' and which Great Britain

desires shall not be invalidated by the convention, must be something

vhich she herself has done. At the same time, we are left to conjecture

^hat that thing is which is thus to be carefully saved. It would be

liazardous on our part to assume to know, while I have no doubt that

the British Government, with its accustomed frankness, and in view of

the desirableness of a perfect understanding of the matter, will at once

specify what the thing which has been done by her, and which is not to

be iDvalidated, really is. You will, therefore, respectfully ask the right

honorable secretary for foreign affairs for an explanation of the part of

his letter which I have thus drawn under review, as a preliminary to

lioy farther proceedings in the proposed negotiation.

'^Yoa will i>erform this in such a manner as to show that the expla-
nation is asked in no querulous or hyp ercritical spirit. Secondly, you
^ perform it with reasonable promptness, so that the attainment of
the important object of the negotiation may not be unnecessarily de-
byed; and, thirdly, you will assure the British Government that while
^he United States at present see no reason to think that the stipulation
proposed is necessary or expedient, yet, in view of the great interests
of commerce and of civilization which are involved, they will refuse
nothing which shall be really just, or even non-essential and not
injarioQs to themselves, while of course I suppose they are not ex-
pected in any way to compromise their own national integrity, safety,
or honor."

Mr. Seward, See. of State, to Mr. Adams, Aug. 17, 1661. M8S. Inst., Gr. Brit. ;
Dip. Corr., 1861. See Mr. Seward, Sec. of State, to Mr. HUlsemann, Ang.
22, 1861. MSS. Notes, Austria.

"I have received your dispatch of August 23, number 32. It is ao-
^Jnpanied by a note which was addressed to you by Lord Kussell on the
^^h of the same month, and a paper containing the form of an official
^^•laration which he proposes to make on the part of Her Majesty on
^ke occasion of affixing his signature to the projected convention be-
^^een the United States and Great Britain for the accession of the
Conner power to the articles of the declaration of the congress of Paris
[w the melioration of the rigor of international law in regard to neutrals
^^ maritime war. The instrument thus submitted to us by Lord Eus-
^U is in the following words: * Draft of declaration. — In affixing his
^g^iature to the convention of this day, between Her Majesty the Queen
^^6rea,t Britain and Ireland and the United States of America, the Earl
^^^W declares, by order of Her Majesty, that Her Majesty does not
"*tend thereby to undertake any engagement which shall have any

283

§ 842.] WAR. [chap. XVI

bearing, direct or indirect, on the internal differences now prevailing
the United States.'

*'Lord Bassell^ in his note to you, explains the object of the instr
ment by saying that it is intended to prevent any misconception as
the nature of the engagement to be taken by Her Majesty.

" You have judged very rightly in considering this proceeding on tl
part of the British Government as one so grave and so novel in i
character as to render further action on your part in regard to the pi
jected convention inadmissible until you shall have special instructio
from this Department.

" Long^before the present communication can reach you, my instrc
tions of August 17, "So, 61, will have come to your hands. That pap
directed you to ask Lord Eussell to explain a passage in a note writt
to you, and then lying before me, in which he said : ' I need scarce
add that on the part of Great Britain the engagement (to be contain
in the projected convention) will be prospective, and will not invalida
anything already done,' which explanation I stated would be expect
as a preliminary before you could proceed further in the transaction.

^< You have thus been already prepared for the information that yc
resolution to await special instructions in the present emergency is t
proved.

<^I feel myself at liberty, perhaps bound, to assume that Lord R
sell's proposed declaration, which I have herein recited, will have b<
already regarded, as well by him as by yourself, as sufficiently ans^
ing the request for preliminary explanations which you were insfcruc
to make.

^<I may, therefore, assume that the case is fully before me, and tl
the question whether this Government will consent to enter into :
projected treaty with Great Britain, subject to the condition of adc
ting the simultaneous declaration on Her Majesty's part, proposed
Lord Russell, is ready to be decided.

" I am instructed by the President to say that the proposed decla
tion is inadmissible.

** It would be virtually a new and distinct article incorporated ii
the projected convention. To admit such a new article would, for i
first time in the history of the United States, be to permit a forei
power to take cognizance of and adjust its relations upon assumed i
ternal and purely domestic di^erences existing within our own countr

"This broad consideration supersedes any necessity for considerii
in what manner or in what degree the projected convention, if coi
pleted either subject to the explanation proposed or not, would be
directly ob indirectly on the internal differences which the British Go
emment assume to be prevailing in the United States.

"I do not enlarge upon this branch of the subject. It is enough
Bay that the view thus adopted by the President seems to be in harmo

284

CTHJLP. XVII.] SEIZURE OF GOODS AT SEA. [§ 342.

eQtially with a prndent regard to the safety of the Eepablic and a jnst
geDse of its honor and dignity.

^^The proposed declaration is inadmissible, among other reasons, be*
eanse it is not mataal. It proposes a special rule by which Her Majes-
ty^s obligations shall be meliorated in their bearing upon internal diffi-
calties now prevailing in the United States, while the obligations to be
aBsamed by the United States shall not be simOarly meliorated or at all
affected in their bearing on internal differences that may now be pre-
vailing, or may hereafter arise and prevail, in Great Britain.

^'It is inadmissible, becanse it woald be a substantial and even a
radical departure from the declaration of the congress at Paris. That
declaration makes no exception in favor of any of the parties to it in
regard to the bearing of their obligations upon internal differences
which may prevail in the territories or dominions of other parties.

^' The declaration of the congress of Paris is the joint act of forty-six
great and enlightened powers, designing to alleviate the evils of mari-
time war and to promote the first interest of humanity, which is peaee.
The Government of Great Britain will not, I am sure, expect us to ac-
cede to this noble act otherwise than upon the same equal footing upon
vMch all the other parties to it are standing. We could not consent
to accede to the declaration with a modification of its terms unless all
tbe present parties to it should stipulate that the modification should
^ adopted as one of universal application. The British Government
cannot but know that there would be little prospect of an entire re-
fonnatioQ of the declaration of Paris at the present time, and it has
iiot even told us that it would accept the modification as a general oiie
if it were proposed.

" It results that the United States must accede to the declaration of
^^« congress of Paris on the same terms with all the other parties to it,
or that they do not accede to it at all.

'' You will present these considerations to Lord Eussell, not as argu-
^«nt8 why the British Government ought to recede from the position
it ha^ assumed, but as the grounds upon which the United States de-
<^iiiie to enter into the project/cd convention recognizing that exceptional
P<>8ition of Her Majesty.

^^If, therefore, Her Britannic Majesty's Government shall adhere to
^0 proposition thus disallowed, you will inform Lord Bussell that the
Negotiation must for the present be suspended.

"I forbear purposely ftom a review of the past correspondence, tx>

^rtain the relative responsibilities of the parties for this failure of

^ Negotiations, from which I had hoped results would flow beneficial, not

o^y to the two nations, but to the whole world — beneficial, not in the

present age only, but in future ages.

"It is my desire that we may withdraw from the subject carrying

*^ay no feelings of passion, prejudice, or jealousy, so that in some hap-

285

§ 342.] WAR. [chap. xvn.

pier time it may be resumed, and the imi>ortaDt objects of the proposed
convention may be fnlly secared. I believe that that propitious time
is even now not distant ; and I will hope that when it comes Great
Britain will not only willingly and unconditionally accept the adhesion
of the United States to all the benignant articles of the declaration of
the congress of Paris, but will even go further, and, relinquishing her
present objections, consent, ajs the United States have so constantly in-
vited, that the private property, not contraband, of citizens and sub-
jects of nations in collision shall be exempted from confiscation equally
in warfare waged on the land and in warfare waged upon the seas,
which are the common highways of all nations.

^^ Eegarding this negotiation as at an end, the question arises, what,
then, are to be the views and policy of the United States in regard to
the rights of neutrals in maritime war in the present case. My previ-
ous dispatches leave no uncertainty upon this point. We regard Great
Britain as a friend. Her Majesty's flag, according to our traditional
principles, covers enemy's goods not contraband of war. Goods of Her
Majesty's subjects, not contraband of war, are exempt from confisca-
tiou, though found under a neutral or disloyal flag. Fo depredation
sliail be committed by our naival forces or by those of any of our citi-
zens, so' far as we can prevent it, upon the vessels or property of Brit-
ish subjects. Our blockade, being effective, must be respected.

'* The unfortunate failure of our negotiations to amend the law of
nations in regard to maritime war does not make us enemies, althongh,
if they had been successful, we should have perhaps been more assured
friends.

" Civil war is a calamity from which certainly no people or nation that
has ever existed has been always exempt. It is one which i^robably no
nation ever will escape. Perhaps its most injurious trait is its tendency
to subvert the good understanding and break up the relations existing
between the distracted state and friendly nations, and to involve them,
sooner or later, in war. It is the desire of the United States that the
internal differences existing in this country may be confined within our
own borders. I do not suffer myself for a moment to doubt that Great
Britain has a desire that we may be successful in attaining that object,
and that she looks with dread upon the possibility of being herself
drawn into this unhappy internal controversy of our own. I do not
think it can be regarded as disrespectful if you should remind Lord
Russell that when, in 1838, a civil war broke out in Canada, a part of
the British dominions adjacent to the United States, the Congressof the
United States passed and the President executed a law which eftectu-
ally prevented any intervention against the Government of Great Brit-
ain in those internal differences by American citizens, whatever might
be their motives, real or pretended, whether of interest or sympathy.
I send you a copy of that enactment. The British Government wiU
judge for itself whether it is suggestive of any measures on the part of

286

CHIP. XVII.] SEIZURE OF GOODS AT SEA. [§ 342,

Great Britain tbat might tend to preserve the peace of the two coun-
tries, and through that way the peace of all nations.^'

Mr Seward, Sec. of State, to Mr. Adams, Sept. 7, 18G1. MSS. Inst., Or. Brit.;
Dip. Corr., 1861.

" I have the honor to acknowledge the reception of dispatches from
the Department, numbered from 61 to 67, both inclusive.

''Since the date of your No. 61, of the 17th of August, you will have
learued ere this that the enigmatical extract from Lord Russell's note
tome, of which you instructed me to ask an explanation, has taken a
very distinct and unequivocal shape, supersedingall necessity for further
inquiry. I may take occasion to remark upon the similarity of some of
the reaaouing in your dispatch witli that which you will find already
made use of in my letter to his lordship, of the 23d August, declining
to conclude the negotiation. On tbe whole, it 'seems to me that it is
IHjrhaps as well to let it stay for the present in the situation in which
Ber Majesty's ministers have placed it. But in this I remain to be di-
rected at the pleasure of the President.

''In this connection 1 have the honor to transmit a copy of Lord Rus-
selPfj note of the 28th of August, in reply to mine of the 23d of that
mouth to him, already referred to in the preceding paragraph. I like-
wise send a copy of his instructions to Lord Lyons, which he seems to
have furnished to me as an evidence of his good faith in the represen-
tation be made of them to me at the conference."

Mr. Adams to Mr. Seward, Sept. 7, 1861. MSS. Dispatch, Gr. Brit. ; Dip. Corr.,
ItiCl.

/'The undersigned. Her Majesty's principal secretary of state for for-
eign aft'airs, has had the honor to receive the note, of the 23d instant,
of Mr. Adams, envov extraordinary and minister plenipotentiary of the
I'Dited States.

'*Mr. Adams hjis accounted satisfactorily for the delay in answering
tlienote of the undersigned of the 19th instant. Her Majesty's Gov-
cmment in all these transactions has acted in concert with the Goveru-
Di^nt of the Emperor of the French, and the undersigned cannot be
Mrprised that Mr. Adams should wish to communicate with Mr. Day-
^% at Paris, before replying to his note.

/'The undersigned is quite prepared, following Mr. Adams, to reca-
pitulate the particulars of this negotiation, and he is happy to think
tliat in matters of fact there is no ground for any controversy between
them. He need only supply omissions.

''Mr. Adams, at his first interview with the undersigned, on the 18th
of May last, mentioned the subject of the declaration of Paris as one on
^Uch he had power to negotiate, and the undersigned then told him
tto the matter had been already committed to the care of Lord Lyons,
?t Washington, with authority to agree with the Government of the
United States on the basis of the adoption of three of the articles and
the omission of the first, being that relating to privateering. So far,
|he statement of Mr. Adams«.agrees substantially with that which is
"<^remade. But the representation of the undersigned was strictly
accurate, and in the faith of it he subjoins the dispatch by which Lord
Lyons was authorized to negotiate on the basis of the three latter
'^i^ticles of the declaration of Paris. Lord Lyons, however, was not
^napowered to sign a convention, because that form had not been

2S7

§ 342.] WAB. [chap, xvil

adopted by the powers who originally signed the declaration, nor by
any of the nomerons states which afterwards gave their adherence to
its articles.

<' At a later period, when Mr. Adams brought a copy of his foil
powers to the foreign office, the ondersigned asked why the adherence
of the United States should not be given in the same form as that of
other powers, and he was told, in reply, that as the Oonstitntion of the
United States required the consent of the Senate to any agreement
with foreign powers, that agreement must necessarily, or at least woold
most conveniently, be made in the shape of a convention.

'' The uudersigned yielded to this argument, and proposed to the
Government of the Emperor of the French, witn which Her Majesty's
Government have been acting throughout in complete agreement, to con-
cur likewise in this departure from the form in which the declaration of
Paris had been adopted by the maritime powers of Europe.

^^ But the British Government could not sign the convention proposed
by the United States as an act of Great Britain singly and alone, and
they found to their surprise that in case of France and of some of the
other European powers the addition of Mr. Marcy relating to private
property at sea had been proposed by the ministers of the United States
at the courts of those powers.

<' The undersigned concurs in the statement made by Mr. Adams re-
specting the transactions which followed. Her Majesty's Government^
like Mr. Adams, wished to establish a doctrine for all time, with a view
to lessen the horrors of war all over the globe. The instructions sent to
Lord Lyons prove the sincerity of their wish to give i>ermanence and
fixity of principles to this part of the law of nations.

<^ The undersigned has now arrived at that part of the subject upon
which the negotiation is interrupted.

^^ The undersigned has notified Mr. Adams of his intention to accom-
pany his signature of the proposed convention with a declaration to the
effect that Her Majesty ^ does not intend thereby to undertake any en-
gagement which shall have any bearing, direct or indirect, on the inter.
nal differences now prevailing in the United States.'

'^ The reasons for this course can be easily explained. On some recent
occasions, as on the folfillment of the treaty of 1846, respecting the
boundary, and with respect to the treaty called by the name of the
* Clayton-Bulwer treaty,' serious differences have arisen with regard
to the precise meaning of words, and the intention of those who framed
them.

^* It was most desirable in framing a new agreement not to give rise
to a fresh dispute.

'^ But the different attitude of Great Britain and of the United States
in regard to the internal dissensions now unhappily prevailing in the
United States gave warning that such a dispute might arise out of the
proposed convention.

" Her Majesty's Government, upon receiving intelligence that the
President had declared by proclamation his intention to blockade the
ports of nine of the States of the Union, and that Mr. Davis, speaking
in the name of those nine States, had declared his intention to issue
letters of marque and reprisals, aud having also received certain infor-
mation of the design of both sides to arm, had come to the conclusion
that civil war existed in America, and Her Majesty had thereupon
proclaimed her neutrality in the approaching contest.

288

CHAP. XVII.] -SEIZURE OP GOODS AT SEA. [§ 342.

'^ The Government of the United States, on the other hand, spoke
only of unlawful combinations, and designated those concerned in them
as rebels and pirates. It would follow logically and consistently, from
the attitude taken by Her Majesty's Government, that the so-called
Confederate States, being acknowledged as a belligerent, might, by the
law of nations, arm privateers, ami that their privateers must be re-
garded as the armed vessels of a belligerent.

"With equal logic and consistency it would follow, from the position
taken by the United States, that the privateers of the Southern States
might be decreed to be pirates, and it might be further argued by the
Government of the United States that a European power signing a
convention with the United States, declaring that privateering was
and remains abolished, would be bound to treat the privateers of the
so-called Confederate States as pirates.

" Hence, instead of an agreement, charges of bad faith and violation
of a convention might be brought in the United States against the
power signing such a convention, and treating the privateers of the so-
called Confederate States as those of a belligerent power.

" The undersigned had at first intended to make verbally the declara-
tion proposed. Bnt he considered it would be more clear, more open,
more fair to Mr. Adams to put the declaration in writing, and give no-
tice of it to Mr. Adams before signing the convention.

-• The undersigned will not now reply to the reasons given by Mr.
Adams for not signing the convention if accompanied by the proposed
declaration. Her Majesty's Government wish the question to be fairly
weighed by the United States Government. The undersigned, like Mr.
Adams, wishes to maintain and perpetuate the most friendly relations
between Her Majesty's Kingdom and the United States. It is in this
8pirit«that Her Majesty's Government decline to bind themselves with-
out a clear explanation on their part to a convention which, seemingly
confined to an adoption of the declaration of Paris of 1856, might be
construed as an engagement to interfere in the unhappy dissensions now
prevailing in the United States — an interference which would be con-
trary to Her Majesty's public declarations, and would be a reversal of
the policy which Her Majesty has deliberately sanctioned."

Earl Bussell to Mr. Adams, August 28, 1861 ; ibid.

The following instructions were inclosed :

" Foreign Office, May 18, 1861.
"MtLobd: Her Majesty's Govemment deeply lament the outbreak of hostilities
in North America, aad they would gladly lend their aid to the restoration of peace.

"YoQ are instracted, therefore, in case yon shonld be asked to employ yoar good
<>fficei, either singly or in conjunction with the representatives of other powers, to give
yooraasistance in promoting the work of reconciliation. But as it is most probable,
^"P^&Uy alter a recent letter of Mr. Seward, that foreign advice is not likely to be
^^Pted, you will refrain £x>m offering it unasked. Such being the case, and suppos-
^ the contest not to be at once ended by signal success on one side or by the return
^^endly feeling between the two contending parties. Her Majesty's Government have
^ coQuder what will be the position of Great Britain as a neutral between the two
^%reiita.

"So &r as the position of Great Britain in this respect toward the European powers
tt eoaeened, that position has been greatly modified by the declaration of Paris of April
^ 1866. That declaration was signed by the ministers of Austria, France, Great
^^itiin^pniasia, Russia, Sardinia, and Tarkey.

8. MiB. 162— VOL. m 19 289

§ 342.] WAB. [chap. xvn.

<ti

The motlveA for making that declaration, and for agreeing to the articles of mari-
time law which it proposes to introdnoe with a view to the establishment of a 'oni-
form doctrine' and * fixed prineiples/ are thus shortly ennmerated in the declaration:

" ' Considering that maritime law in time of war has long been the sabject of deplor^
able disputes ;

'' ' That the oncertainty of the law and ^f the daties in snch a matter gives rise Um
differences of opinion between neatrals and belligerents which may occasion serious
difflcolties, and even conflicts ;

'* 'That it ib conseqnently advantageoas to establish a uniform doctrine on so im.--
portant a point ;

'' ' That the plenipotentiaries assembled in congress at Paris cannot better respond
to the intentions by which their Govemments are animated than by seeking to intK^>
dnce into international relations fixed principles in this respect—

" < The above-mentioned plenipotentiaries, being duly aathorized, resolved to cozx-
cert among themselves as to the means of attaining this object, and having oome tio
an agreement have adopted the following solemn declaration : '

'' Ist. Privateering is and remains abolished.

"2d. The neutral ^Ag covers enemy's goods, with the exception of contraband of
war. •

"3d. Neutral goods, with the exception of contraband of war, are not liable to
capture under enemy's flag.

" 4th. Blockades, in order to be binding, must be effective — that is to say, main-
tained by a force sufficient really to prevent access to the coast of the enemy.

"The powers signing the declaration engaged to bring it to the knowledge of the
states which had not taken part in the Congress of Paris, and to invite those states
to accede to it. They finally agreed that 'the present declaration is not and shaU
not be binding, except between those powers who have acceded or who shall accede
to it.'

" The powers which acceded to the declaration are Baden, Bavaria, Belgium, Bre-
men, Brazil, Duchy of Brunswick, Chili, the Argentine Confederation, the Germanic
Confederation, Denmark, the Two Sicilies, the Republic of the Equator, the Roman
States, Greece, Guatemala, Hay ti, Hamburg, Hanover, the two Hesses, Lubeck, Meck-
lenburg-Strelitz, Mecklenburg-Schwerin, Nassau, Oldenburg, Parma, Holland, Pern,
Portugal, Saxony, Saxe-Altenburg, Saxe-Coburg-Gotha, Saxe-Meiningen, Saxe-Wei-
mer, Sweden, Switzerland, Tuscany, WtLrtemberg, Auhalt Dessau, Modena, New
Granada, and Uruguay.

" Mr. Secretary Marcy, in acknowledging, on the 28th of July, 1856, the communica-
tion of the declaration of Paris made to the Government of the United States by the
Count de Sartiges, proposed to add to the first article thereof the following words : ' and
that the private property of the subjects or citizens of a belligerent on the high seas
shall be exempted from seizure by public armed vessels of the other belligerents, ex-
cept it be contraband ;' and Mr. Marcy expressed the willingness of the GoTeznment
of the United States to adopt the clause so amended, together with the other three prin-
ciples contained in the declaration.

" Sir. Marcy alao stated that he was directed to communicate the approval of the
President of the second, third, and fourth propositions, independently of the first,
should the proposed amendment of the first article be unacceptable.

" The United States minister in London, on the 24th of Febniary, 1857, renewed the
proposal in regard to the first article, and submitted a draft of convention, in which
the article so amended would be embodied with the other three articles. Bat, before
any decision was taken on this proposal, a change ^k place in the Ametioati Gov-
ernment by the election of a new President of the United States, and Mr. Dalla»
announced, on the 25th of April, 1857, that he was directed to suspend negotiatioiia
the subject ; up to the present time those negotiations have not been renewed.

290

CHAP. XVn.] SEIZURE OP GOODS AT SEA. [§ 3421

** The oonaeqnence is, that the United States remaining outside the pi ovisions of the
declaration of Paris, the uncertainty of the law and of international duties with regard
to snchmatteiB may give rise to differences of opinion between neutrals and belliger-
ehtB which may occasion serious difficulties and even conflicts.

"II is with a view to remove beforehand such * difficulties/ and to prevent snch
'ooDflicts,' that I now address you.

"For this purpose I proceed to remark on the four articles, beginning, not with the
first, bnt with the last :

"hi a letter to the Earl of Clarendon of the 24th of February, 1857, Mr. Dallas,
the minister of the United States, while submitting the draft of a new conventicm,
explains the views of the Government of 'the United States on the four articles.

"In reference to the last article he says: 'The fourth of those principles, respect-
ing blockades, had, it is believed, long since become a fixed rule of the law of war.'

"There can be no difference of opinion, therefore, with regard to the fourth article.

"With respect to the third article, the principle laid down in it has long been rec-
ognised as law, both in Great Britain and in the United States. Indeed this part of
the law is stated by Chancellor Kent to be uniform in the two countries.

"With respect to the second article, Mr. Dallas says, in the letter before quoted:
'Ahont two years prior to the meeting of the congress at Paris, negotiations had been
originated and were in train with the maritime nations for the adoption of the sec-
ond and third propositions substantially as enumerated in the declaration.'

"The United States have therefore no ohjection in principle to the second proposi-
tion.

"Indeed, Her M%{esty'8 Government have to remark that this principle is adopted
^ the treaties between the United States and Russia of the 22d of July, 1854, and
▼Msanctiened by the United States in the earliest period of the history of their in-
dependence by their accession to the armed neutrality.

"With Great Britain the case has been different. She formerly contended for the
opposite principles as the established rule of the law of nations.

"Bat having, in 1866, upon full consideration, determined to depart from that
^^ she means to adhere to the principle she then adopted. The United States, who
^^ always desired this change, can, it may be presumed, have no difficulty in as-
nnting to the principle set forth in the second article of the declaration of Paris.

"There remahiB only to be considered the first article, namely, that relating to pri-
^^^eering, from which the Government of the United States withhold their assent.
Under these circumstancee it is expedient to consider what is required on this subject
^ the general law of nations. Now, it must be borne in mind that privateers bear-
ing the flag of one or other of the belligerents may be manned by lawless and aban-
^odmen, who may commit, for the sake of plunder, the most destructive and san-
S°^ outrages.

"There can be no question but that the commander and crew of the ship bearing a
^^tter of marque must, by law of nations, carry on their hostilities according to the
^blished laws of war. Her Majesty's Government must, therefore, hold any Gk>v-
^nment issuing such letters of marque responsible for, and liable to make good, any
^^^^HiBostained by Her Majesty's subjects in consequence of wrongful proceeding of
^^Is sailing under snch letters of marque.

"In this way the object of the declaration of Paris may, to a certain extent, be at-
^^ without the adoption of any new principle.

"Ton will urge these views upon Mr. Seward.

'The proposals of Her Mi^esty's Government are made with a view to limit and
'^'^ that destruction of property and that interruption of trade which must, in a
PHter or less degree, be the inevitable consequence of the present hostilities. Her
"^o^s Qoveznment expect that these proposals will be received by the United
Stakes Qovemment in a friendly spirit. If such shall be the case, you will endeavor

291

§342.] WAR/ [chap. XV

(in concert with M. Mercier) to come to on agreement on the subject binding Fran
Great Britain, and the United States.

'* If these proposals should, howeveri be rejected, Her Majesty's GoTemment t
consider what other steps should be taken with a riew to protect from wrong f
injury the trade and the property and persons of British subjects.
" I am, &c.,

"J. RUSSBLI

^* The Lord Lyons."

For discussion by Mr. Seward of the Treaty of Paris, see Mr. Seward, Sec
State, to Mr. Clay, Apr. 24, 1861. MSS. Inst., Russia.

*' Your dispatch of August 22, No. 35, has been received. I lej
from it that Mr. Thouvenel is unwilling to negotiate for an access
by the United States to the declaration of the congress of Paris o
ceming the rights of neutrals in maritime war, except ^ on a distil
understandiDg that it is to have no bearing, directly or indirectly,
the question of the domestic difScnlty now existing in our count]
and that to render the matter certain, Mr. Thouvenel proposes to nu
a written declaration simultaneously with his execution of the p
jected convention for that accession.

<< You have sent me a copy of a note to this effect nddressed to j

by Mr. Thouvenel, and have also represented^to me an official conver

tion which he has held with you upon the same subject. The decla

tion which Mr. Thouvenel thus proposes to make is in these words:

"< In affixing his signature to the convention concluded on date
this da^ between France and the United States, the undersigned
Clares, in execution of the orders of the Emperor, that the Gove
ment of His Majesty does not intend to undertake by the said convi
tion any engagements of a nature to implicate it, directly or indirect
in the internal conflict now existing in the United States.'

" My dispatch of the 17th day of August last, No. 41, which y
must have received some time ago, will already have prepared you
expect my approval of the decision to wait for specific instructions
this new emergency at which you have arrived.

*' The obscurity of the text of tl^e declaration which Mr. Thouvei
submits to us is sufficiently relieved by his verbal explanations. Aoeoi
ing to your report of the conversation, before referred to, he said tl
both Prance and Great Britain had already announced that they woi
take no part incur domestic controversy, and they thought that a fra
and open declaration in advance of the execution of the projected o
vention might save difficulty and misconception hereafter. Hefurtl
said, in the way of specification, that the provisions of the convent
standing alone might bind England and France to pursue and pun
the privateers of the South as pirates ; that they are unwilling to
this, and had so declared. He said, also, that we could deal with th
people as we choose, and they (England and France) could only expr
their regrets on the score of humanity if we should deal with them
pirates, but that they could not participate in such a course. He ad(

292

CHiP. xvil] seizure of goods at sea. [§ 342.

that althoogh both England and France are anxious to have the adhe-
fiioDof the United States to the declaration of Paris, yet that they^
wculd rather dispense with it altogether than be drawn into oar do-
mestic controyersy. He insisted somewhat x>ointed1y that we could
t&ke DO jast exception to this outside declaration, to be made simulta-
neously with the execution of the convention, unless we intended that
^liey (England and France) shall be made parties to our controversy,
and that the very fact of your hesitation was ani additional reason why
tJiey should insist upon making such contemporaneous declaration as
±hej proposed.

** These remarks of Mr. Thouvenel are certainly distinguished by
entire frankness. It shall be my effort to reply to them with modera-
tion and candor.

. ^ In 1856, France, Great Britain, Bussia, Prussia, Sardinia, and
Turkey, being assembled in congress at Paris, with a view to modify
the law of nations so as to meliorate the evils of maritime war, adopted
and set forth a declaration, which is in the following words :
"Ut Privateering is and remains abolished.

*^2d. The neutral flag covers enemy's goods, with the exception of
contraband of war.

*^3d. Keutral goods, with the exception of contraband of war, are
Bot liable to capture under enemy's flag.

^ 4th. Blockades, in order to be binding, must be effective — ^that is
to Bay, maintained by forces sufficient really to prevent access to the
coast of the enemy.

*^The states which constituted the congress mutually agreed to sub-
i&it the declaration to all other nations and invite them to accede to it.
It was to be submitted as no special or narrow treaty between particu-
^ Btates for limited periods or special purposes of advantage, or under
peculiar circumstances ; but, on the contrary, its several articles were,
^7 voluntary acceptance of maritime X)owers, to constitute a new chap-
^'^ in the law of nations, and each one of the articles was to be uni-
yersal and eternal in its application and obligation. France especially
Jovited the United States to accede to these articles. An invitation
^^ equally tendered to all other civilized nations, and the articles
l»ave been already adopted by forty-one of the powers thus invited.
•Die United States hesitated, but only for the purpose of making an
^ort to induce the other parties to enlarge the beneficent scope of
the declaration. Having failed in that effort, they now, after a delay
itot unusual in such great international discussions, offer their adhe-
sion to that declaration, pure and simple, in the form, words and man-
^^ in which it was originally adopted and accepted by all of the
forty-six nations which have become parties to it. France declines to
i^ve that adhesion, unless she be allowed to make a special declara-
tion, which would constitnte an additional and qualifying article, lim-
iting the obligations of France to the United States to a narrower range

293

§ 342.] WAB. [chap, xvu

than the obligations which the United States mnst assume towaids
France and towards every other one of the forty-six sovereigns whe
are parties to it, and narrower than the mutaal obligations of all those
parties, including France herself.

<' If we should accede, to that condition, it manifestly would not be
the declaration of the congress of Paris to which we would be adhering,
but a different and special and peculiar treaty between France and the
United States only. Even as such a treaty it would be unequal. As-
suming that Mr. Thouvenel's reasoning is correct, we should in that case
be contracting an obligation,. directly or indirectly, to implicate our-
selves in any internal conflict that may now be existing or that may
hereafter occur in France, while she would be distinctly excused by ua
from any similar duty towards the United States.

<^ I know that France is a friend, and means to be just and equal
towards the United States. I must assume, therefore, that she means
not to make an exceptional arrangement with us, but to carry out the
same arrangement in her interpretation of the obligations of the decla-
ration of the congress of Paris in regard to other powers. Thus car-
ried out, the declaration of Paris would be expounded so as to exclude
all internal conflicts in states from the application of the articles of that
celebrated declaration. Most of the wars of modem times — ^perhaps of
all times — ^have been insurrectionary wars, or ^' internal conflicts." If
the position now assumed by France should thus be taken by all the
other parties to the declaration, then it would follow that the first article
of that instrument, instead of being, in fact, an universal and effectual
inhibition of the practice of privateering, would abrogate it only in
wars between foreign nations, while it would enjoy universal toleration
in civil and social wars. With great deference I cannot but think that
thus modified the declaration of the congress of Paris would lose mudi
of the reverence which it has hitherto received from Ohristian nationa
If it were proper for me to pursue the argument further I might add
that sedition, insurrection, and treason would find in such a new reading
of the declaration of Paris encouragement which would tend to rendei
the most stable and even the most beneficent systems of government
insecure. Nor do I know on what grounds it can be contended thai
practices more destructiviB to property and life ought to be tolerated in
civil or fratricidal wars than are allowed in wars between independeni
nations.

<' I cannot, indeed, admit that the engagement which France is re
quired to make without the qualifying declaration in question would
directly or indirectly, implicate her in our internal conflicts. But i
such should be its effect, I must, in the flrst place, disclaim any desin
for such an intervention on the part of the United States. The wboh
of this long correspondence has had for one of its objects the purpose
of averting any such intervention. If, however, such an interventioi
would be the result of the unqualified execution of the convention bj

294:

CHAP. XVU.] SEIZURE OP GOODS AT SEA. [$ 342.

France, then the faalt clearly must be inherent in the declaration of
the congress of Paris itself, and it is not a result of anything that the
United States have done or proposed.

'^Two motives induced them to tender their adhesion to that declara-
tion— first, a sincere desire to co-operate with other progressive nations
in the melioration of the rigors of maritime W9,r ; second, a desire to
relieve France from any. apprehension of danger to the lives or prop-
ertyof her people from violence to occur in the course of the civil con-
flict in which we are engaged, by giving her, unasked, all the guarantees
in that respect which are contained in the declaration of the congress
of Paris. The latter of these two motives is now put to rest, insomuch
as France declines the guarantees we offer. Doubtlessly, she is satis-
fied that they are unnecessary. We have always practiced on the prin-
ciples of the declaration. We did so long before they were adopted by
the congress of Paris, so far as the rights of neutrals or friendly states
are concerned. While our relations with France remain as they now
are ve shall continue the same practice none* the less faithfully than if
bonnd to do so by a solemn convention.

*^Tbe other and higher motive will remain unsatisfied, and it will lose
none of its force. We shall be ready to accede to the declaration of
Paris with every power that will agree to adopt its principles for the
government of its relations to us, and which shall be content to accept
our adhesion on the same basis upon which all the other parties to it
kave acceded.

"We know that France has a high and generous ambition. We
shall wait for her to accept hereafter that co-operation on our part in a
Si^ reform which she now declines. We shall not doubt that when
^^6 present embarrassment which causes her to decline this co-ox>era-
tion shall have been removed, as it soon will be, she will then agree
with ns to go still further, and abolish the confiscation of property of
nonbelligerent citizens and subjects in maritime war.

^ loa will inform Mr. Thouvenel that the proposed declaration on
the part of the Emperor is deemed inadmissible by the President of the
I^Qited States ; and if it shall be still insisted upon, you will then in-
form him that you are instructed for the present to desist from further
negotiation on the subject involved.''

Mr. Seward, Seo. of State, to Mr. Dayton, Sept. 10, 1861. HSS. Inst., France ;
Dip. Corr., 1861.

"I have the honor to acknowledge the receipt of your letter of the
19th instant, communicating to this Government the text of a dispatch
from Comit Bismarck, to the effect that private property on the high
^^ will be exempt from seizure by the ships of His Majesty the King*
0^ Prussia, without regard to reciprocity.

"In compliance with the request further contained in your note, that
<»nummication has been oflicially made public from tjiis Department.

295

§ 342.] WAR. [chap, xvh

<< It is now nearly a century since the United States, throagh Thomas
Jefferson, Benjamin Franklin, and John Adams, their plenipotentiaries,
and Prussia, under the guidance of the great Frederick, entered into a
treaty of amity and commerce, to be in force for ten years from its date,
whereby it was agreed that if war should unhappily arise between the
two contracting parties, ^all merchant and trading vessels employed
in exchanging the products of different places^ and thereby rendering
the necessaries, conveniences, and comforts of human life more easy to
be obtained, and more general, should be allowed to pass free and un-
molested; and that neither of the contracting powers should grant oi
issue any commission to any private armed vessels, empowering them
to take or destroy such trading vessels, or interrupt such commerce.'

<<The Government of the United States receives with great pleasure
the renewed adherence of a great and enlightened Glerman Government
to the principle temporarily established by the treaty of 1785, and since
then advocated by this Government whenever opportunity has offered.
In 1854, President Pierce, in his annual message to Congress, said :
^Should the leading powers of Europe concur in proposing as a rule of
international law, to exempt private property upon the ocean from
seizure by public armed cruisers, as well as by privateers, the United
States will readily meet them on that broad ground.' In 1856 this
Government was invited to give its adhesion to the declaration of Paris.
Mr. Marcy, the then Secretary of State, replied: *The President pro-
poses to add to the first proposition in the declaration of the congress
at Paris the following words : ** And that the private property of the
subjects or citizens of a belligerent on the high seas shall be exempted
from seizure by public armed vessels of the other belligerent, unless it
be contraband." Thus amended, the Government of the United States
will adopt it, together with the other three principles contained in that
declaration.' And again, in 1861, Mr. Seward renewed the offer to
give the adhesion of the United States to the declaration of the con-
gress at Paris, and expressed a preference that the same amendment
should be retained.

^< Count Bismarck's dispatch, communicated in your letter of the 19tlk
instant, shows that North Germany is williug to recognize this principle
(even without reciprocity) in the war which has now unhappily broken
out between that country and France. This gives reason to hope that
the Government and the people of the United States may soon be grati •
fled by seeing it universally recognized as another restraining and
harmonizing influence imposed by modem civilization upon the art o^
war."

Mr. Fish, Seo. of State, to Mr. Gerolt, July 22, 1870. MSS. Notes, Geim.; For.
Eel., 1870.

^^ You are informed that you are authorized to obtain the recognition of
the principle of the exemption of private property of citizens or subject*

296

CHAP. XVII.] SEIZURE OP GOODS AT SEA. [§ 342.

ofeitherof the two parties (to the Franco-German war) from capture
OD the high seas by either privateers or pablic vessels of the other."

Mr. Fish. Sec. of State, to Mr. Bancroft, Oct. 28, 1870. MSS. Inst., Germ. ; For*
Rel., 1870.

"The undersigned, Secretary of State of the United States, has the
honor to acknowledge the receipt of the note of Baron Gerolt, the envoy
and minister plenipotentiary of the North German Union, of the 14th
instant, inclosing a translation of a telegram from Count Bismarck, of
the 13th instant, to the North German legation at Washingtoi;i, in the
following words :

"The treatment of German merchant ebips by France obligee ns to revoke the deo-
lantion made by na at the beginning of the war, exempting all French merchant ^es-
wIb, not carrying -contraband of war articles, from capture by onr war Teasels.

** Ab neatral property may have been shipped on board of French vessels in confi-
dence of the above declaration, the new measure will not be carried into effect until
four weeks after this date.

'*In informing Baron Gerolt that the information so commnnicated
▼ill be made pnblic, the undersigned has the honor farther to express
the great regret with which the Government of the United States re-
ceives the information that circnmstances have arisen which in the
opinion of the Government of North Germany justifies its withdrawal
^m a position which the Government of the United States regarded
with very great satisfaction, as taken in the best interests of civiliza-
tion.

"The telegram from Count Bismarck, which was communicated to the
Widereigned by Baron Gerolt on the 19th day of July last, was in the
Mowing language :

"Private property on high seas will be exempted from seizure by His Majesty's
nips, trithont regard to reciprocity.

"The notice now communicated to the undersigned by Baron Gerolt
'^^ in terms to French merchant vessels, and makes no mention of
American merchant vessels. To avoid misapprehension and future
Realty, the undersigned has the honor to inquire of Baron Gerolt
whether the merchant vessels of the United States are to continue ex-
^ptfrom seizure, or whether they are to be considered at the expira-
^onof the term named as relegated to their rights under the 13th
^cle of the treaty of 1799 between the United States and Prussia^
whidi was revived by the 12th article of the treaty of 1828.

'"AsT. Xm. And in the same case of one of the contracting parties being engaged
^ war with any other iM>weT, to prevent aU the difficnlties and misanderstandings
uatiuaally arise respecting merchandise of contraband, snch as arms, ammnnition,
ttd military stores of every kind, no such articles carried in the vessels, or by the
Ejects or citizens of either party, to the enemies of the other, shall be deemed con-
^^d, BO as to induce confiscation or condemnation and a loss of property to indi-
^'otHa, Keverthelees, it shaU be lawfnl to stop snch vessels and articles, and to de-
taintlwiii for snch length of time as the captors may think necessary to prevent the
iitoo&Teiiience or damage that might ensne from their proceeding, paying, however,
^neaonable compensation for the loss such arrest shaU occasion to the piopmtoxA^

297

^ 342.] WAE. [chap. xvn.

and it eball farther be allowed to use in the service of the captors the whole or any
part of the military stores so detained, paying the owners the fnll valae of the same,
to be ascertained by the current price at the place of its destination. Bnt in the
case supposed of a vessel stopped for articles of contraband, if the master of the ves-
sel stopped will deliver ont the goods supposed to be of contraband nature, he shalJ
be admitted to do it, and the vessel shall not in that case be carried into any p6rt<,
nor further detained, but shall be allowed to proceed on her voyage.

<< 'All cannon, mortars, fire-arms, pistols, bombs, grenades, bullets, balls, muskets,
flints, matches, powder, saltpeter, sulphur, cuirasses, pikes, swords, belts, cartoucl
boxes, saddles, and bridles, beyond the quantity necessary for the use of the ship, oi
beyond that which every man serving on boaxd the vessel, or passenger, ought t<
have ; and in general whatever is comprised under the denomination of arms anc
military stores, of what description soever, shall be deemed objects of contraband."^

Mr. Fish, Sec. of State, to Mr. Gerolt, Jan. 14, 1871. MSS. Notes, Germ. ; For.
Eel., 1871.

<<The undersigned, Secretary of State of the United States, has the
honor to acknowledge the receipt of the note which Baron Gerolt, envoy
and minister plenipotentiary of the Korth German Union, did him the
honor, on the 16th instant, to address to him upon the revocation of the
declaration made by the North Grerman (Government at the commence-
,ment of the war with France, for the protection of all private property
at sea. Baron Getolt apparently labors under a mistake in supposing
that the undersigned, in his note of the 14th instant, inquired whether
the merchant vessels of the United States would, after the inauguration
of the new measures, still be protected from capture as before, and would
be treated according to the provisions of the treaty between Prussia and
the United States which was cited by the undersigned.

<< The undersigned was unfortunate in the use of language in his note
of the 14th instant, if it is capable of being construed as implying any
doubt of the purpose of the Government of His Majesty the King of
Prussia, or of the Government of North Germany, to observe faithfully
its treaty obligsftions toward the United States. The telegram of Count
Bismarck, communicated to the undersigned by Baron Gtorolt on the 14th
instant, related to terms to French vessels alone.

'<It was the object of the undersigned to ascertain whether the ves-
sels of the United States were to continue at liberty to transport contra-
band of war without liability to seizure, in accordance with the terms
of the notice communicated to the undersigned on th^ 19th of July last
If it should appear that it was the purpose of the Korth Grerman Gov-
ernment to withdraw the privilege so conceded, it would follow that the
vessels of the United States would be remitted to the rights secured to
them by the treaty cited in the undersigned's note of the 14th instant
The undersigned hopes to receive at an early day information on this
subject which may be made public.

'^The undersigned observes with some surprise that Baron Gerol<
thinks that it might be considered as a matter of course that articles
contraband of war were not intended to be embraced among the itemi
of 'private ])roperty on the high seas to be exempted from seizure^

298

CHAP. XVn.] SEI2UBE Ot GOODS AT SEA. [§ 342.

under the notice of the 19tli of July last. The undersigned takes the
liberty to refer Baron Gerolt to the very precise language in the tele-
gram of Count Bismarck, and to say that it seems to the undersigned
scarcely probable or even possible that a statesman so distinguished
38 Goaut Bismarck, and so accurate in the choice of words to express
his meaning, would have failed to set forth so important an exception,
had he not intended to extend the exemption from seizure to all private
property."

Same to same, Jan. 19, 1871 ; ibid,

"Tour dispatch, l^o. 106, of the 21st January last, has been re-
ceived. It is accompanied by translations of certain recent decrees of
the Peruvian Government and copies of circulars addressed by the min-
ister of foreign afGairs of Peru to the representatives of friendly nations.
A]l these inclosures, with the exception of those which you number 6
and 7, relate to internal affairs of that country, and do not appear t5
call for any special instructions. One of the papers referred to, how-
ever, assumes that Chili has seized those nitrates on the Peruvian coast
which Peru claims as her own, and is exporting their products in neutral
vessels, and that, therefore, Peruvian cruisers will not respect a neutral
flag detected in that busiiiess.

"Although in the present subdued condition of the Peruvian navy
there may not be much risk of capture of neutral vessels by the Peru-
vian men-of-war, it is proper that you should remind that Government of
the eighteenth article of its treaty of 1870 with the United Qtates, which
expressly stipulates that free ships shall give freedom to goods, and
that everything shall be deemed free which shall be found on board the
vessels belonging tocitizens of either of the contracting parties, although
the whole lading or a part thereof should belong to the enemies of either,
^des contraband of war always excepted. It seems clear, therefore,
that if a Peruvian cruiser should capture an American vessel whose
cargo, in whole or in part, should consist of the nitrate referred to, the
^ty would be violated in a case for which it was specially intended
to provide. For such an act that Government would certainly be held
accoantable. It is hoped, therefore, that that Government, as a proof
of it8 friendly disposition toward that of the United States, and of its
<)e6ire to observe in good faith its formal treaty stipulations, will either
80 modify the circular referred to or will give such orders as may pre-
^^Qt an act of which we should have such just cause to complain.

''Ihave received copies of the two circulars through the chargd
^I'affaires of Peru in Washington, and have prepared replies thereto,
^hich I inclose. You will please retain copies of the same on your files
and deliver the originals."

Mr.Eyarto, Sec. of State, to Mr. Cbrifitiancy^ Mar. I,18ti0. MSS. Inst., Pera;
For. Rel., 1880.

299

§ 342.] WAR. [chap. XVII.

^' It is natural that Peru should be incensed at the exportation or
nitrate for the benefit and account of her adversary. It is to be re-
gretted, however, that she should allow her resentment to lead her to-
claim a belligerent right not acknowledged by any authority, that of
capturing on the high seas vessels of a neutral for having on board &
cargo from a place which she owned before the war. In this case, how-
ever, her title to it was annulled, or at least suspended, by the armeA
occupation by Chili of the region whence the article was taken. The
attempt of Peru, therefore, to avenge upon neutrals her want of gooA
fortune in the contest will not, it is to be feared, add to her reputation
for magnanimity or regard to public law, and certainly will not be
acquiesced in by the Governments of neutrals, whose interests may
thereby be affected."

Same to Bame, Mar. 2, 1880; ibid.; Doc. with Preaident's message of Jan. 26,
1882.

The object of the armed neutrality entered into by the northern
European maritime powers in 1780, frequently above referred to,
was to establish, as against England, the rights of neutral property
on the high seas. By the treaty of July 11, 1790, between the United
States and Prussia, the doctrine of free ships making free goods was
reaffirmed. Sussia, Sweden, and Denmark having about the same time
entered into separate treaties for renewing the principles of the armed
neutrality, Great Britain laid an embargo on the shipping of those na-
tions, and sent a squadron to the Baltic, whose operations culminated
in the destruction of the Danish fleet.

47 West. "Rev.f 349. See supra, $^ 149, 159.

*'That the American amendment was necessary to give to the ^dec-
laration ' of Paris full effect, was soon recognized by most of the Euro-
pean Governments, as the writer of these notes has reason to know from
the perusal of the papers in the Department of State at Washington^
which were placed at his disposition by the late Secretaries with a view
to the preparation of the present edition of this work. Among the mi-
nor maritime states there was a clear unanimity of sentiment, but they
naturally awaited, before giving a formal reply, the answer of the great
powers. The adhesion of Enssia was promptly rendered. Prince
Gortschakoff instructed, so early as September, 1856, the Russian min-
ister at Washington to communicate to Secretary Marcy a copy of his
Instructions to Baron Brnrow. He says: 'Your excellency will have
an opportunity in Paris of taking cognizance of Mr. Marcy's note, in
which the American proposition is developed in that cautious and lucid
manner which commands conviction. The Secretary of State does not
argue the exclusive interests of the United States; his plea is put for
the whole of mankind. It grows out of a generous thought, the em-
bodiment of which rests upon arguments which admit of no reply. Th^
attention of the Emperor has, in an eminent degree, been enlisted by"
the overtures of the American Cabinet. In his view of the questioiB.
they deserve to be taken into serious consideration by the powers
which signed the GTreaty of Paris. They would honor themselves shoul A
they, by a resolution taken in common and proclaimed to the world ,
apply to private property on the seas the principle of inviolability wbict^
they have ever professed for it on land. They would crown the worls

300

CHAP. XVII.] SEIZURE OP GOODS AT SEA. [§ 342.

of pacification which has called them tofi^ether, and give it an additional
guarantee of permanence. By order of the Emperor yon are invited to
entertain this idea before theminister of foreign affairs, and to apprise
him forthwith that shonld the American proposition become the sabject
of common deliberation among the powers, it wonld receive a most de-
ciaive support at the hands of the representative of His Imperial
Majesty. Yon are even aathorized to declare that our august master
would be disposed to take the initiative of this question.'

^*The American minister at Paris was assured by Count Walewski,
in I^oTember, 1856, that the French Governmeut would agree to the
* declaration' as modified by us, though a formal assent was deferred
with a view to consultation with the other parties to the Treaty of
Paris. Prussia formally announced in May, 1857, to Mr. Cass, Secre-
tary of State, who had replaced Mr. Marcy, that the Cabinet of Berlin
gave its adhesion to the proposition made by the President of the
United States to be added to the principles agreed on at Paris, declar-
ing, at the same time, that ^ if this proposition should become the sub-
ject of a collective deliberation, it can rely on the most marked support
of Prussia, which earnestly desires that other states will unite in a de-
termination, the benefits of which will apply td all nations.' "

Lawrence's Wlieaton (ed. 1863), 640, 641.

"This point appears not to have escax)ed the attention of foreign
powers, and with a view to remove difficulties and to prevent conflicts
which might arise from differences of opinion between belligerents and
neutrals while the United States remained outside of the Treaty of
Paris, Lord J. Bussell, on the 18th of May, 1861, instructed Lord Lyons
to waive (a« mentioned in a note to chap. 2, §10, of this part) the pri-
vateer clause, and, in concert with the French minister at Washington,
M. Mercier, to come to an agreement on the other articles binding on
^ce, Great Britain, and the United States. (Papers relating to
foreign aftairs, etc., accompanying President's message, December,
1861,133). • • •

^'For the reason already explained, the Executive alone is not, under
the GoDBtitution of the United States, competent to effect modifications
of the public law, and should the case come before the judiciary, the
^Qrt8 might not deem themselves bound by the assurance contained
itt Mr. Seward's instructions of the 7th of September, 1861, to Mr.
Adams, and reiterated in the note of December 26, 1861, to Lord Lyons,
that the neutral flag should cover enemy's goods not contraband of
war."

Ibid,, 778.

So far, however, as relates to the interpretation of existing laws, the
above statement is open to criticism. The executive department, being
charged with the foreign relations of the Government, is the only au-
thority to which foreign powers can look as determining these relations,
and the law to which they are subject. Nor, as has been seen, is the
executive department, when directing its officers to take or not take an

enemy's goods on neutral ships, in any way bound by the rulings of the

eoorts.

Supra, a 78, IZ8,2S8.

** During the civil war in the United States, the French Government
^^It nneasy lest France should suffer by reason of the fact that, under
her treaty of 1800, the United States might condemn French goods in

301

§ 342.] WAR. [chap. xvu.

rebel vessels, while it woald not do so with the goods of other nations
with whom the United States had no such treaty. This, no donbt^
added a motive for the French to unite with England to arrange the dif-
ficulties that lay in the way of the accession of the United States to the
declaration of Paris. Mr. Seward's letter to Mr. Adams of 7th Septem-
ber, 1861, in which he breaks off the negotiations for an accession to
the declaration of Paris, still declares that the United States, in this
war, will adopt the policy ^ according to our' traditional principles, that
Her Majesty's flag covers enemy's goods not contraband of war. Goods
of Her Majesty's subjects not contraband of war are exempt from con-
fiscation, though found under a disloyal flag.' (Dip. Corr., 1861, 143.)
And, in his letter to Mr. Dayton, of September 10, 1861^ on the same
subject, Mr. Seward says: ^ We have always practiced on the principles
of the declaration. We did so long before they were adopted by the
congress of Paris, so far as the rights of neutral or friendly states are
concerned. While our relations with France remain as they now are,
we shall continue the same practice, none the less faithfully than if
bound to do so by a solemn convention.' (Dip. Gorr., 1861, 251.)

^^The British and French Governments, through their consuls at
Charleston, made an arrangement with the Confederacy, by which the
Confederates agreed to adopt the third, fourth, and fifth articles of
Paris, but not the first. (British Pari. Papers, Isoith America, No. 3.)
And in his letter to Lord jLyons on the Trent affair, Mr. Sewaid refers
to the fact that the United States had, in this war, made known its in-
tention to act in accordance with the second and third articles of the
declaration of Paris."

Dana's Wheaton, $ 475, note 223.

"Mr. Dana, in his edition of Wheaton's Elements of International Law^ page 610,
has obserred in a note upon the second resolation of the declaration of Paris, that
' if a nation party to the declaration is at war with one that is not, the former is not
hoond to abandon its right to take enemy's goods from vessels of nentral nations,
which are parties to the declaration, and as the stipulation is made not from any
doubts that as between belligerents only such captures are the natural and proper^
results of war, but for the benefit of neutrals vexed thereby, all parties to the deckir<-
ation, when they are neutral, are in danger of losing the benefits of it.' The ccmcln'
sion at which Mr. Dana arrives seems to be insufficiently warranted if the cireum —
stances which led to the declaration of Paris are taken into account, seeing that th^
declaration of the seven powers assembled in congress was simply a confirmation oes.
their part of a reform in the practice of maritime warfare, which had been inaugu —
rated by France and Great Britain in 1854, under a mutual agreement with respect t^^
neutrals in a war against an enemy who was no party to the agreement. A memoi x"
read by M. Drouyn de Lhuys before the French Academy on 4th April, 1868, may Iv^
cited in illustration of the views upon which France and Great Britain acted in 1854 -
His excellency, who was minister of foreign affairs in Paris in 1854, and who in th»^
capacity initiated the mutual oomnromise between France and Great Britain, whicl^
was subsequently embodied in the second and third reeolutions of the declaration of
1856, thus expresses himself: 'The system inaugurated by the war of 1854 responded
so well to the common wants of all countries thac it took without difficulty the char-
acter of a definitive reform of international law. At the congress of peace assembled
in Paris in 1856, the plenipotentiaries, whose mission it was to consecrate the results
of the war, found themselves naturally led to comprise in it the confirmation of
the rules, which had been observed by the belligerent powers ^ith regard to neo-
trals. liiis was the object of the declaration of Paris of 1856.'

302

CHAP. XVII.] SEIZUEE OP GOODS AT SEA. [§ 342.

" Mr. Dana does not appear to have been aware at the time when he bo interpreted
the declaration of Paris, that France and Great Britain^ the two powers with whom
the declaration originated, had in practice pat an interpretation on the second and
third resolntions which is calculated to relieve all nentrals, who have adhered to the
declaration of Paris, from all risk of losing the benefit of their adherence to it nndex
the circomstances contemplated by Mr. Dana. For instance, in anticipation of a
joint war against China, which power has not acceded to the declaration of Paris,
France and Great Britain, as allies in the event of war^iasned each of them an ordi-
nance ' as to the observance of the rnles of maritime law nnder the declaration of
the congress of Paris of 1856 towards the vessels and goods of the* enemy and of
neutral powers.' "

Sir T. Twiss on Belligerent Rights, &c,, London, 1684.

" The declaration of Paris, 1856/^ says Dr. Woolsey (Int. Law App.,
ill., note 25), ^^ by which the neutral flag covers enemies' goods, de-
stroyed the force of the rnle of 1756, for the new rale protects neutral
trade in innocent articles between two hostile ports, whether such trade
M been opened to neutrals in time of peace or not. The rule is ex-
pressed in the most general terms. But, although this rule is obsolete,
and has gone into history for the most part, the United States, not be-
ing a party to the above-mentioned declaration, may yet be under the
operation of the old British law in regard to coasting and colonial trade.
Here two questions may be asked, the one touching the lawfulness of
coasting trade proper, the other touching the conveyance by neutrals
of their goods, brought out of foreign ports, from one port of the enemy
to another. Our Government has contended for the right of neutrals
to engage in both descriptions of trade, if we are not in an error, while
some of our publicists hold the ^rst to be reasonably forbidden, the
other to be allowed. Judge Story says (Life and Letters, i, 285-289)
that) in his private opinion, ^ the coasting trade of nations, in its strict -
^character, is so exclusively a national trade that neutrals can never
te permitted to engage in it during war without being affected with the
P^iialty of confiscation. The British have unjustly extended the doc-
^e to cases where a neutral has traded between ports of the enemy
^th a cargo taken in at a neutral country.' He is ' as clearly satisfied
^ the colonial trade between the mother country and the colony, where
^ trade is thrown open merely in war, is liable, in most instances,
^ the same penalty. But the British have extended their doctrine
to all intercourse with the colonies, even from or to a neutral country,
^d herein, it seems [to him], they have abused the rule.' There seems
to be reason for such a difference. To open coasting trade to neutrals
^ ft confession of inability to carry on that branch of trade op account
^^ apprehensions from the enemy's force, and an invitation to neutrals
to afford relief from the pressure of war. It is to adopt a new kind of
^ttsel, on the ground that they cannot be captured. The belligerent
^ly has the right to say that his attempts to injure his enemy shall
Qot be paralyzed in this manner. But Ife has no right to forbid the
^^tral to carry his own goods from hostile port to hostile port, when
ne might have done it before. Every right of innocent trade, then, en-
joyed by the neutral in peace, should be allowed after the breaking out
^the war ; but new rights, given to them on account of the war, may
he disregarded by the belligerent as injuring his interests.
. "BautefeuiUe remarks, on the other side, that the sovereign who can
Interdict can also permit a certain kind of commerce. But this is
^ging the question. Can he, by such privileges, restrain his enemy

303

§ 342.] WAR. TCHAP. XVIi

from annoying him — privileges which are nothing but taking the neutral
trader into a kind of partn^^ip f Suppose that he hired war vessels
from a neutral sovereign, would that exempt them from capture t"

^' There are many reasons which render the maritime trade of Great
Britain the most valuable, as it is the largest, in the world, and indeed
because it is the largest ; and were our navy of ten times the strength
and numbers it is, our trade would be still more valuable."

144 Edinb. Bev., 363, in stating irhy Great Britain ehonld accept the doctrine
of firee'ahips making free goods.

As to Rossia's Tacillating attitude as to armed nentrality, see 8 John Qoincy
Adams' Memoirs, 67.

For an account of the action of the United States in reference to the mle of
1756, see 3 PhilL, Int. Law (3 ed.), 378, 382.

Mr. J. Q. Adams' correspondence, when at Berlin in 1798, as to the neutrality of
free ships, is given in 2 Am. St. Pap. (For. Bel.), 252 jf.

The full text of the exposition of the doctrine of neutral rights at sea hy Mr.
J. Q. Adams, Sec. of State, in his instructions to Mr. Bush, of July 28, 1823,
is given in Senate Ex. Doc. 396, 18th Cong., 2d sees., 5 Am. St. Pap. (For.
Bel.), 529.

The correspondence in 1854 hetween the United States and other countries as
to helligerent rights as affected hy the then pending war; is given in Pres-
ident Pierce's message of May 11, 1854, House Ex. Doc. 103, 33d Cong., Ist

BC8B.

The Brit, and For. St. Pap. for 1855-'56, voL 46, 821, gives correspondence he-
tween the United States and Denmark, France, Great Britain, Bussia
and Sweden and Norway, relative to rights of neutrality and rights of
helligerents in war. Among th^e papers are the lollowing: The Danish
minister to Mr. Marcy, Sec. of State, Jan. 20, 1854, as to the Bnssian war
then heginning. The Swedish charge d'afEaires to Mr. Marcy, Jan. 28, 1854,
on same suhject. Mr. Marcy, Sec. of State, to Mr. Buchanan, Feh. 14, 1854.
Mr. Buchanan, U. S. Minister at London, to Mr. Marcy, Feh. 24, Mar. 17»
1854 (elsewhere noted). Mr. Mason, U. S. minister in Paris, to Mr. Maicy^
as to French Government's view on privateering.

Much of the correspondence as to the Treaty of Paris is given in Brit, and For.
St. Pap., 1864-'65, vol. 55.

By the President's iostractious of the 28th of August, 1812, issued
under and in accordance with the prize act of that year (2 Stat lu^
761), British and American property, shipped in Great Britain, on board
w vessel of the United States, after a knowledge of the war, but in oon>
sequence of the repeal of the British orders in council, are protected
from forfeiture.

The Thomas Gibbons, 8 Cranch, 421 ; The Mary, 9 ibid,, 126.

Goods appearing by ship's papers to be a consignment from alien ene-
mies to American merchants, condemned in toto as prize, altboagh
further proof was offered that American merchants were jointly inter-
ested, and that they had a lien upon the goods in consequence of ad-
vances made by them.

The Frances, 8 Cranch, 335.

CHAP. XVII.] SEIZURE OF GOODS AT SEA. [§ 342.

If a British merchant purchase with his own lunds, two cargoes of
goods, in consequence of, but not in strict conformity with, the orders
of an American house, and ship them to America, giving the consign-
ors an option within 24 hours after receipt of his letter to take or reject
both cargoes, and if they give notice within the time that they will
take one cargo, but will consider as to the other, this puts it >n the
power of the British merchant either to cast the whole upon the Amer-
ican house, or to resume his property, and make them accountable for
that which came to their hands ; and, therefore the right of property
in cargo, does not, in tranaitUj vest in the American house, but remains
in the British subject, and is liable to condemnation, he being an en-
emy.

The Frances, 9 Crancb, 183.

A vessel of the United States, which went to England after the war
vas known, and brought thence a cargo belonging chiefly to British
enbjects, condemned.

The St. Lawrence, 8 Cranch, 434.

The rales, that neutral bottoms make neutral goods, and that enemies^
bottoms make enemies' goods, are not only separable in their nature,
but have generally been separated; and they are held in the United
States to be distinct.

The Nereide, 9 Cranch. 388.

Astipulation in a treaty that neutral bottoms shall make neutral
?oods, does not by necessary implication introduce the principle that
enemies' bottoms shall make enemies' goods.

IMd.

^iprocating to the subjects of a nation, or retaliating on them its

N^^t proceedings towards our citizens, is a political, not a legal meas-

are.

''^be rule that the goods of an enemy, found in the vessel of a friend,

^ prize of war, and that the goods of a friend, found in the vessel of

^ enemy, are to be restored, is believed to be a part of the original law

l^f QatioDs, as generally, perhaps universally, acknowledged. Certainly,

^^ hA been fully and unequivocally recognized by the United States.

'^^ rule is founded on the simple and intelligible principle that war

&^tt a fall right to capture the goods of an enemy, but gives no right

^capture the goods of a friend. In the practical application of this

Pnneiple, so as to form the rule, the propositions that the neutral flag

institutes no protection to enemy property, and that the belligerent

^ communicates no hostile character to neutral property, are neces-

***% admitteil. The character of the property, taken distinctly and

^parately from all other considerations, depends in no degree upon the

^araetftr of the vehicle in which it is found.

8. Mis. IG2— VOL. Ill 20 305

§ 342.] WAE. [chap. xvn.

" Many nations have believed it to be their interest to vary this sim-
ple and natural principle of public law. They have changed it by con-
vention between themselves, as far as they have believed it tx) be for
their advantage to change it. But unless there be something in the
nature of the rule which renders its parts unsusceptible of division,
nation^ must be capable of dividing it by express compact; and if they
stipulate either that the neutral flag shall cover enemy goods, or that
the enemy flag shall infect friendly goods, there would, in reason, seem
to be no necessity for implying a distinct stipulation not expressed by
the parties. Treaties are formed upon delibei^te reflection. Diplo-
matic men read the public treaties made by other nations, and cannot
be supposed either to omit or insert an article, common in public treaties,
without being aware of the effect of such omission or insertion. Neither
the one nor the other is to be ascribed to inattention. And u an omi^
ted article be not necessarily implied in one which is inserted, the sub-
ject to which that article wonld apply remains under the ancient rule.
That the stipulation of immunity to enemy goods, in the bottoms of one
of the parties being neutral, does not imply a surrender of the goods of
that party being neutral if found in the vessel of an enemy, is the prop-
osition of the counsel for the claimant, and he powerfully sustains that
proposition by arguments arising from the nature of the two stipula-
tions. The agreement that neutral bottoms shall make neutral goods,
is, he very justly remarks, a concession made by the belligerent to the
neutral. It enlarges the sphere of neutral commerce, and gives to the
neutral flag a capacity not given to it by the law of nations.

'^ The stipulation which subjects neutral property found in the hot*
torn of an enemy to condemnation as prize of war, is a concession mado
by the neutral to the belligerent. It narrows the sphere of neutral
commerce, and takes from the neutral a privilege he possessed under
the law of nations. The one may be, and often is, exchanged for the
other. But it may be the interest and the will of both parties to stipu-
late the one without the other; and if it be their interest or their will,
what shall prevent its accomplishment t A neutral may give some
other compensation fo;r the privilege of transporting enemy goods in
safety, or both parties may find an interest in stipulating for this privi-
lege, and neither may be disposed to make to, or require from, tbe
other, the surrender of any right as its consideration. What shall re-
strain independent nations from making such a compact! And how is
their intention to be communicated to each other or to the world, so
pit^erly as by the compact itself f

<< If reason can furnish no evidence of the indissolubility of the two
maxims, the supporters of that proposition will certainly derive no aid
from the history of their progress, from the first attempts at their in-
troduction to the present moment.

^< For a considerable length of time they were the companions of each
other, not as one maxim consisting of a single indivisible principle, bat

306

CHAP XVII.] SEIZURE OF GOODS AT SEA. [§ 342.

as two stipulations, the cue, iu the view of the parties, forming a nata-
ral and obvioas consideration for the other. The celebrated compact
termed the armed neutrality attempted to eflfect by force a great revo-
latioD iu the law of nations. The attempt failed, bat it made a deep
aod lasting impression on pulHic sentiment. The character of this effort
has been accurately stated by the counsel for the claimants. Its object
was to enlarge, and not in any thing to diminish, the rights of neutrals.
The great powers, parties to this agreement, contended for the principle
that free ships should make free goods, but not for the converse maxim ;
so &r were they from supposing the one to follow as a corollary from
the other, that the contrary opinion was openly and distinctly avowed.
The King of Prussia declared his expectation that in future neutral
bottoms would protect the goods of an enemy, and that neutral goods
^onld be safe in an enemy bottom. There is no reason to believe that
this opinion was not common to those powers who acceded to the prin-
eiples of the armed neutrality.

^^From that epoch to the present [1815], in the various treaties which
have been formed, some contain no article on the subject, and conse-
quently leave the ancient rule in full force. Some stipulate that the
character of the cargo shall depend upon the flag, some that the neu-
tral flag shall protect the goods of an enemy, some that the goods of a
neotral in the vessel of a friend (!) shall be prize of war, and some that
the goods of an enem^' in a neutral bottom shall be safe, and that friendly
goods in the bottom of an enemy shall also be safe.

"This review, which was taken with minute accuracy at the bar, cer-
tainly demonstrates that in public opinion no two principles are more
<ii8tiDct and independent of each other than the two which have been
contended to be inseparable.'^

UanhaU, C. J. ; The Kereide, 9 Cranch., 418. See The Jalia, 6 Cranch, 181.

Soods, the property of merchants actually domiciled in the enemy's
^otry at the breaking out of the war, are subject to capture and con-
gestion as prize.

Tbe Mary and Sasan, 1 Wheat., 46.

^perty in transit from a belligerent to a neutral is subject to capt-
'^ and condemnation, if it has not vested at the time of the capture
in the neutral consignees.

The St. JoM Indiano, ibid., 208.

Covering belligerent property by neutral papers is not contrary to
the law of nations, and, in neutral courts, does not invalidate contracts
naade in relation to such property.

De Valcngin ». Duffy, 14 Pet., 282.

An enemy's commerce under neutral disguises has no claim to neu-
toll immunity.

The Bermuda^ 3 Wall., 514.

307

§ 342.] WAE, [chap. XVUL

Presumptions of ownership in a neutral, arising from registry or
other documents, may be rebutted by circumstances.

Ibid,

The liability of property, the product of an enemy country, and com-
ing from it during war, to capture, being irrespective of the stcUus dom-
idliij guilt or innocence, of the owner, such property is as much liable to
capture, when belonging to a loyal citizen of the country of the captors^
as if owned by a citizen or subject of the hostile country or by the hostile-
Government itself. The only qualification of this rule is that, where,,
upon the breaking out of hostilities or as soon after as possible, the
owner escapes with such property as he can take with him, or in good
faith thus early removes his properfy, with the view of putting it be-
yond the dominion of the hostile power, the property in such cases is-
exempt from the liability which would otherwise attend it.

The Gray Jacket, 5 Wall., 342.

Where the war (a civil war) broke out in April, 18C1, a removal on-
the 30th of December, 1863, was held to be too late.

Ibid.

An order for further proof in prize cases is always made with extreme
caution, and only when the ends of justice clearly require it. A claim-
ant forfeits the right to ask it, by any guilty concealments in the case..

Ibid.

The statute of July 13, 1861, giving the Secretary of the Treasury
power to remit penalties, etc., in certain cases did not extend to cap-
tures jure belli.

Jbid.; The Hampton, 5 Wall., 372.

Under the principles of international law, mortgages on vessels capt-
ured jure belli are to be treated only as liens subject to being over-
ridden by the capture.

The Hampton, ibid., 372.

The law of nations does not prohibit the carrying of enemies' goo(l»
in neutral vessels; so far from so doing, upon the condemnation of the
goods, the vessel is entitled to freight. But if a neutral endeavors, by
false appearances, to cover the property of a belligerent from the lawful
seizure of his enemy, such conduct identifies the neotral with the bel-
ligerent whom he thus endeavors to protect, and is a fraud on the'
neutrality of his own Government and upon the rights of the beliig-
'^rent.

Schwartz v. Insurance Company of North America, 3 Wash. C. C, 117.

A shipment made by an enemy shipper to his correspondent in
America, to belong to the latter at his election, in t wen ty -four hour*- -
after the arrival thereof, is liable to condemnation as hostile property,^

.soft

:CnAP. XVII.] SEIZURE OF GOODS AT SEA. [§ 342.

It beiDg held that an election made during the transit will not merge
che hostile character of the property.

The ship Francis and Cargo, 1 GaUison, 445.

As will be seen by a survey of the above cases, the right to seize en-
emy's goods sailing under neutral flag has been sustain^ in the Julia,
8 Cranch, 181; the Nereide, 9 Cranch, 388; the Ariadne, 2 Wheat,,
143. Seethe Caledonian, 4 Wheat., 100; the Hart, ^ Wall., 559; S. 0., Bl.
Pr. Ca., 379. That shipping goods in an enemy's ship gives presump-
tion that goods belong tp enemy, see the London Packet, 1 Mason, 14;
the Amy Warwick, 2 Blatch., 635. On the other hand, the executive
•department of the Government, to use Mr. Marcy's language (Mr.
Marey to Mr. Mason, Aug. 7, 1850, above quoted), ''has strenuously con-
tended that free ships made free goods, articles contraband of war ex-
i^ptcd," and that this was then regarded by the Executive as the gen-
erally accepted rule is evidenced by Mr. Marcy's statement in the next
sentence, that '^ Great Britain is believed to be almost the only maritime
power which has constantly refused to regard this as a rule of inter-
national law." Even in the strain of the late civil war, Mr. Seward, when
proposing to accede to the declaration of Paris on this point, did so on
the (ifronnd that the declaration did not make a new rule, but estab-
lisbed an old one, which the United States has maintained as a part of
I interoational law. This difterence of opinion between the judicial and
exwative departments of the Government may be attributed, in the
;; main, to the distinct political training of the two departments. The
^lecotive, from the time of the administration of Mr. Jefferson, inclined
to the liberal view of international law which became then prevalent
among political economists; and though Mr. Jefferson, when Secretary
<^f State, at first thought the weight of authority was the other way,
he changed his mind as to this,,and took the lead, as President, in recom-
, mendlDg as the best rule, that free ships should make free goods. The
^medoctrine was vindicated with great elaboration by Mr. Madison, and
has been accepted, more or less conspicuously, whenever occasion- arose,
hy succeeding Presidents. While, however, the executive department
-^ttntinued to accept these distinctive views of international law, of which
Hr. Jefferson and Mr. Madison were the exponents, it was otherwise
^th the judiciary. In part this may be attributed to the strong an-
^onism of Chief- Justice Marshall to Mr. Jefferson, and to the scheme
^f public law of which Mr. Jefferson was the leading exponent. But
^de from this, and aside from the strong bias towards English law
and English precedent, which arose from the prior political bias of
ttat great judge, and of his earlier associates, it is impossible not to
iprget the effect, produced, even on professional minds entirely impar-
^^li by the reverence and affection all American lawyers must feel for
English judicial literature. If this be the case now — if such literature
'^Mi Q8 now, often influencing our judgment, amid the great mass
^hich we possess of legal literature of our own — how much greater
^ust have been the influence when the sole text book at hand 'iftis
Blackstone, and when Sir William Scott's attractive and lucid judg-
j»ent8 were the only sources from which prize law could be studied
"f the English tongue. Yet, as is elsewhere shown {supra^ §§ 238,
™«), the highest English authorities on international law, while ad-
mitting the fascination of Sir W. Scott's style, now regard his later
iprtte decsions as no longer binding law.

309

§ 343.] WAR. [chap.

If, during the late civil war, views of Sir W. Scott which had grsL^ ^,
nally ceased to be authoritative in England were reaffirai'^4 by o^^nr
Supreme Court, three explanatory conditions must be remembered : Q^ ij
The judges of that court were not themselves, with one or two excc^^^.
tions, familiar with prize law, and from the most startling judgments ^f
that court {e. ^., that in the Springbok, tnfra, § 362), Judge Nelson B,mzid
Judge Clifford, who were the judges most familiar with this branch of
law, dissented. (2) It could hardly be expected, at a time when trl^e
whole atmosphere was charged with a sense of the necessity of v^^.
orous war measures, at least as strongly as was the atmosphere of Ewig.
land in the time of Sir W. Scott, that precedents established by prior
decisions of the court, in favor of high belligerent rights, should hare
been overruled. Yet, at this very period, it is greatly to the credit of
Mr. Seward that he maintained unbroken the doctrine as to belligerent
rights in this relation pronounced by his predecessors. Co-ordinate as-
are the executive and the judiciary in matters of international lav
{sttpraj § 238), it was right that he should have taken this course, not'
regarding himself as bound by the ruliilgsof the courts, and it is rigbt^.
also, that to the different positions assumed in this relation by the exee^
utive and the judiciary, attention should be called in this work.

'' It has been the singular honor of the late Lord Kingsdown, who*
presided over the English high court of appeal in prize cases daring
the Crimean war, to have applied the law of blockade to neutral ves-
sels with an equity unknown to the prize court in the days of Lord.
Stowell, and which a veteran judge of the English high court of ad-
miral^ (the Bight Hon. Dr. Lusbington), who had practiced in pris^
cases before Lord Stowell, considered to be too favorable to neutrali^-
It was also in former days the pride of the Supreme Court of the nnite^3<
States to have framed its practice in prize causes after the rules of tlB.^
British courts of prize, which, as observed by one of the most emiuecm t
jurists of the United States, Mr. Justice Story, are conformable wit 1*
the prize practice of France and other European countries. It would t^^'
deeply to be regretted that upon the law of blockade the prize cour*^-*
of the two countries should proceed henceforth on divergent lines, am^
that whilst the British high court of appeal has been striving to rend<
the law of blockade less onerous to neutrals by tempering its admini
tration with greater equity, the Supreme Court of the United States
America should have risked to make it intolerable by throwing upo'*
the neutral owners of cargo a burden of proof which it is contrary ^^^
natural equity to impose upon them, and by sanctioning the novel prm vi-
ciple that a cargo may be condemned for a breach of blockade, wtiil^^
the ship itself, in which it is laden, is .acquitted of any design of pr%^
ceeding to a blockaded port.''

Sir T. Twiss, BeUigerency, &c., London, 1H84.

(6) Liability of xeutrai. propertt under bxemy-s flag.

* §343.

A neutral may lawfully ship his goods on board an armed belligerent
vessel, and if her force be used in a combat in which he gives no **<*
his goods are not affected.

The Noreide, 9 CraTich, 3S8; the Atalanta, 3 Wheat., 409.
310

CHAP. XVIL] seizure OP GOODS AT SEA. [§ 343.'

The mere depositing by a neatral of his goods in an armed belliger-
ent merchantman does not impress his goods with a belligerent charac-
ter at the time of their seizure by the enemy, even though he were him-
self on board, if he took no part in and in no way directed the defense
of the merchantman.

The Nereide, 9 Cranch, 388. See, however, disaenting opinion of Story, J.

** That a neutral may lawfully place his goods on board a belligerent
ship for conveyance on the ocean is universally recognized as the orig-
inal rule of the law of nations." ^^ The rule is universally laid down in
terms which. comprehend an armed as well as an unarmed vessel."

MarsbaU, C. J. ; the Xereide, 9 Cranch, 425.

•

Where enemy's property is fraudulently blended in the same claim
with neutral property, the latter is liable to share the fate of the former,
and must be condemned.

The St. Nicholas, 1 Wheat., 417.

Neutral muniments, however regular and formal, if only colorable,
do Dot afifect belligerent rights.

The Bngen, iUd,, 61.

It is a principle of the law of nations that a neutral cargo found on
l)oard an armed enemy's vessel is not liable to condemnation as prize of

war.

The Atalanta, 3 Wheat., 409.

In general the circumstance of goods being found on board an en-
emy's ship raises a presumption that they are enemy's property.

The London Packet, 5 Wheat., 132.

Kentrals who place their vessels under belligerent control and engage
tbem in belligerent trade, or permit them to be sent with contraband
<^goe8 under cover of false destination to neutral ports, while the real
iiestination is to belligerent ports, impress upon them the character of
^e belligerent in whose service they are employed, and cannot com-
plain if they are seized and condemned as enemy property.

The Hart, 3 Wall., 559.

Ab to leaving property at enemy's disposal, see ittfray $ 353.

'^The Supreme Court of the United States has held that there is no
^lid distinction of right between the act of a neutral merchant who
1<^8 his goods on board an enemy's merchant ship and the act of a
^<^Qtral merchant who ships his goods in an armed vess^ belonging to
f*^e enemy. The opinion of Chief Justice Marshall, who with the ma-
jority of the court decided, in the case of the Nereide, ^ that a neutral
merchant had a right to charter and lade his goods on board a bellig-
erent anned vessel without forfeiting his neutral character,' is entitled
^^ great weight, not merely from the authority which attaches to the
?Pinion8 of that eminent judge, but also from the solidity of the reason-
^SopoD which his judgment in that case proceeded. But the opinion

.'^11

§§ 344, 345.] WAK. [chap, xvi

of Mr. Justice Story was the other way, and coincided with the view <
Lord Stowell. The Sapreme Court of the United States, in Febrnar
term, 1818, maintained the same view in the case of the Atalanta (
Wheat., 400 ; 5 Wheat., 433) as it had previously maintained in tb
Kereide ; so that the decisions of the highest tribunal of the Unite
States is on this point in direct conflict with the judgment of the Englis
high court of admiralty."

Twiss, Law of Nations in War (2d ed.), 188.

By an order in council of 1854, it was declared not to be ^* Her Mi^
esty's intention to claim the confiscation of neutral property, not beini
contraband of war, found on board enemy's ships." The ^French 6o^
ernment took the same position. (See Lawrence's Wheaton, 770-1, not
228.)

(7) Exceptions as to rule of sbizurb of enemy's pboperty at sea.

§344.

Even by those who hold that enemy's property may be seized oi
neutral ships, it is agreed that such seizure cannot be made on ueutra
waters (supra^ § 27) or on public ships. {Supraj § 36.)

(8) What is a lawful capture of an enemy's merchant ship.

§345.

In 1799 there was a limited state of hostilities between this counts
and France, and the capture of a private armed vessel, officered an
manned by Frenchmen, and sailing under the French flag, was lawfu
though the vessel was the property of a neutral, from whom the Frenc
possessors had captured her.

Talbot V, Seenian, 1 Cranch, 1.

A vessel of the United States, which carries a cargo for freight frou
a neutral to an enemy's port, after the war is known, is liable to capt
are and condemnation, though such passage is a part of her home voy
age from the neutral port to the United States, and the capture is mad<
after she has sailed from the enemy's port.

The Joseph, 8 Cranch, 451.

In cases of recapture the rule of reciprocity is applied. If France
would restore in a like case, then we are bound to restore ; if otherwise
then the whole property must be condemned to the recaptors. It ap-
pears that by the law of France in cases of recapture, after the prop
erty has been twenty-four hours in possession of the enemy, the wholi
propei'ty is adjudged good prize to the recaptors, whether it belongec
to her subjects, to her allies, or to neutrals. We are bound, therefore
in this case to apply the same rule ; and as the property in this cas^
was recaptured after it had been in possession of the enemy more tha'

312

CHIP. XVn.] SEIZURE OF GOODS AT SEA. [§ 345.

^wentyfoar hoars, it musty so far as it belonged to persons domiciled
an France, be condemned to the captors.

Schooner Adeline, 9 Cranch, 244.

If a capture be made by a privateer, which had been illegally equip-
{)ed iu a neutral country, the prize courts of such neutral country have
l)ower and it is their duty to restore the captured property, if brought
^itbiu their jurisdiction to its owner. '

Brig Alerta v. Moran ; ibid., 359.

As to privateers, see farther infra, $ $ 384, 385.

Navigating under a license from the enemy is closely connected in
principle with the offense of trading with the enemy, and is cause of
•confiscation. In both cases the knowledge of the agent will affect the
principal, although he may, in reality, be ignorant of the fact.

The Hiram, 1 Wheat., 440.

The capture of a neutral ship having enemy's property on board is a
strictly justifiable exercise of the rights of war. It is no wrong done
to the neutral, even though the voyage be thereby defeated. The cap-
tors are not therefore answerable inpcenam to the neutral for the losses
vhich he may sustain by a lawful exercise of belligerent rights. It is
tbe misfortune of the neutral and not the fault of the belligerent.

By the capture the captors are substituted in lieu of the original
<>wner8, and they take the property cum onere. They are, therefore,
f^poDsiblo for the freight which then attached upon the property, of
^bich the sentence of condemnation ascertains them to be the rightful
■<>wner8, succeeding to the former proprietors. So far the rule seems per-
tectiy equitable, but to press it further and charge them with tbe freight
^f goods which they have never received, or with the burden of a charter
P*ny into which they have, never entered, would be unreasonable in
i^lf and inconsistent with the admitted principles of prize law. It
'Bigbt, in case of a justifiable capture by the condemnation of a single
l^le of goods, lead the captors to their ruin with the stipulated freight
^' a whole cargo.

The Antonia Johanna, 1 Wheat., 159. See infra, $ 353.

•

The rules of prize courts as to the vesting of property are the same
'^ith those of the common law by which the thing sold, after the com-
ptetioD of the contract, is properly at the risk of the purchaser. But
the question still recurs, when is the contract executed ? It is certainly
"^OBJpetent for an agent abroad, who purchases in pursuance of orders,
to Test the property in his principal immediately on the purchase. This
18 the case when he purchases exclusively on the credit of his principal,
or makes an absolute appropriation and designation of the property for
"is principal. But where a merchant abroad, in pursuance of orders,
either sells his own goods or purchases goods on his own credit (and
thereby, in reality, becomes the owner), no property in the goods vests

313

§ 345.] WAR. [chap. XVIlL

Id his correspoDdent until he has done some notorious act to divest him*
self of his title or has parted with the possession by an actual and un-
conditional delivery for the use of such correspondent.

The St. Jose Indiano, 1 Wheat., 206.

Whatever might be the right of the Swedish sovereign; acting under
his own authority, we are of opinion that if a Swedish vessel be ^-
gag^d in the actual service of Great Britain, or in carrying stores for
the exclusive use of the British' armies, she must, to all intents and
purposes, be deemed a British transport. It is perfectly immaterial in
what particular enterprise those armies might, at the time, be engaged ;
for the same important benefits are conferred upon an enemy, who-
thereby acquires a greater disposable force to- bring into action against
us.

Story J ; The Commeroen, 1 Wheat., 382. Chief-Justice Marshall diaaentiog.

The mere sailing under an enemy's license, witjiout regard to the ob-
ject of the voyage, or the port of destination, constitutes in itself an act
of illegality which subjects the property to confiscation.

The Ariadne, 2 Wheat., 143.

Where a neutral ship owner lends his name to cover a fraud with re-
gard to the cargo, his conduct will subject the ship to condemnation.

The Fortima, 3 Wheat., 236.

A vessel and cargo liable to capture as enemy's property, or for sail- ^«
ing under the pass or license of the enemy, or for trading with thi
enemy, may be seized after arrival in a port of the United States an<
condemned as prize of war. The delictum is not purged by the termini
tion of the voyage.

The Caledonian, 4 Wheat., 100.

A capture of Spanish property, in violation of our neutrality, by
vessel built, armed, equipped, and owned in the United States, is ilh
gal, and the property, if brought within our territorial limits, will
restored to the original owner.

La Concepcion, 6 Wheat., 235.

It is settled that if captures are made by vessels which have violat^s<^
our neutrality acts, the property may be restored, if brought within o'«:»J
territory. Hence a vessel armed and manned in one of our ports, as^s^
sailing thence to a belligerent port, with the intent thence to depart oi^
a cruise with the crew and armament obtained here, and so departivsg
and capturing belligerent property, violates our neutrality laws, an<i
her prizes coming within our Jurisdiction will be restored.

The Gran Para, 7 Wheat., 471.

The seizure of a vessel by the naval force of the United States ii^
waters belonging to a friendly power, though an offense against tb^t
power, is a matter to be adjusted between the two Governments an^

CHAP. XVIL] seizure OP GOODS AT SEA. [§ 345,

not within the cognizance of the coart, and does not render unlawfat
judicial proceedings against the vessel, institated after her arrival
within the jurisdiction of the United States.

Ship Riohmood r. U. S., 9 Cranch, 102; The Merino, 9 Wheat., 391.

Spoliation of papers at the time of capture warrants unfavorable in*-
Ibrences as to the employment, destination, and ownership of the capt*
nred vessel.

The Bermuda, 3 Wall., 514.

The act of March 3, 1863, << to protect the liens upon vessels in cer-
tain cases," etc., does not refer to captures jure belli, or modify the law
of prize in any respect.

The Hampton, 5 Wall:, 372.

In the Hart, 3 Wall., 559, it was said by Chase, C. J., ^< that neu-
trals who place their vessels under belligerent control, and engage
them in belligerent trade, or permit them to be sent with contraband
cargoes under cover of false destination to neutral ports, impress upon
them the character of the belligerent in whose service they are employed^
and cannot complain if they are seized and condemned as enemy's prop-
erty."

Ships in time of war are bound by the character impressed upon them
by the Government from which their documents issue and under whose
flag and pass they sail.

The share of a citizen in a ship sailing under an enemy's flag and pa-
pers, there having been ample time and opportunity to dispose of the
same, but no attempt made to do so, is subject to capture and condem-
nation equally with the shares of enemies in the same ship. And where-
the cargo and ship are owned by the same person, the cargo follows the
&te of the ship.

The William Bagaley, 5 Wall., 377.

If a ship or cargo is enemy property, or if either be otherwise liable-
to condemnation, the circumstance that the vessel at the time of the
capture was in neutral waters would not, by itself, avail the claimants-
•^n a prize court. It might constitute a ground of claim by the neutral
power, whose territories had suffered trespass, for apology or indemnity^
(See tn/ra, §§ 3, 40, 96.) But neither a hostile belligerent nor a neutral
acting the part of such belligerent, can demand restitution of cax)tured
property on the sole ground of capture in neutral waters.

The Sir William Peel, ihid., 517 ; The Adela, 6 ibid., 266.

^ hana fide purchase for a commercial purpose by a neutral in his^
own home port, of a ship-of-war of a belligerent that had fled to such
port in order to escape from enemy vessels in pursuit, but which waa
^^fid^ dismantled prior to the sale, and afterward fitted up for the

315

§ 345.] WAE. [chap. xvn.

'merchant service, does not pass a title above the right of capture by the
^other belligerent.

The Georgia, 7 WalL, 32.

A merchant vessel of one country visiting, for the purpose of trade, a
port of another where martial law has been established, under bellig-
*«rent right, subjects herself to that law while she is in such port. •

U. 8. r. Diekelman, 92 U. 8., 520. Supra^ $ 35.

Ab to seizures for blockade-mnniDg, see infra, $ 362 ; for carrying contraband,
$ 375; action of prize court as to, 9upra, $ 330; as to sales to belligerent,
ifrfrcj $ 392.

The benefit of the registry of an American vessel is lost to the owner
during his residence in a foreign country, but upon his return to this
country the disability ceases ; nor does the fact that during the foreign
residence of the owner the vessel carried a foreign flag work any divest-
iture of title, nor render the disability perpetual.

1 Op., 523, Wirt, 1821.

^< In 1854, at the commencement of the Crimean war, it was proclaimed
by an order in council that all Kussian vessels in British ports should
be allowed six weeks for loading their cargoes and for departing there-
from, and, further, that if met with at sea by any British shipsof-war
they were to be permitted to continue their voyage, if from their papers
it was evident that their cargoes had been taken aboard before the ex-
piration of the above term. The French Government also issued a sim-
diar order. The British Government, on the same occasion ordered all
Her Majesty's subjects who might be resident in Russia to return to
their own country within the term of six weeks."

2 Halleck's Int. Law (Baket's ed.), 126.

A similar course was taken by the German and French Governments
•in the war of 1870.

Ibid., 127.

<^ Fishing boats have also, as a general rule, been exempted from the
effects of hostilities. As early as 1521, while war was raging between
Charles Y and Francis, embassadors from these two sovereigns met at
Calais, then English, and agreed that whereas the herring fishery was
about to commence, the subjects of both belligerents engaged in this
pursuit should be safe and unmolested by the other party, and should
have leave to fish as in time of peace. In the war of 1800, the British
and French Governments issued formal instructions exempting the fish*
ing boats of each other's subjects from seizure. This onler was snbse*
•qneutly rescinded by the British Government, on the alleged ground,
that some French fishing-boats were equipped as gunboats, and thaC
some French fishermen, who had been prisoners in England, had vio-
lated their parole not to serve, and bad gone to join the French fleet at
Brest, Such excuses were evidently mere pretexts ; and after some
angry discussions had taken place on the subject, the British restric-
tion was withdrawn, and the freedom of fishermen was again allowed
on both sides. French writers consider this exemption as an established

316

CHAP. XVn.] 8EIZUEE OP GOODS AT SEA. [§ 346;

principle of the modern law of war, and it has been so recognized in the
French courts, which have restored, such vessels when captured by
French cruisers."

Ihtd., 151.

(9) When convoys pbotxgt.

§346.

" * Although' (says Dy. Nicoll) 'a neutral ship may legally caiTy ene-
mies' property, yet the belligerent has on the other hand a right to
seize that property, paying the neutral his freight and expenses. If
the neutral, in order to prevent the belligerent from exercising his legal
Tight, puts himself under the enemies' convoy, the claim of freight and
expenses is thereby forfeited. It is a departure from that impartiality
^bich the nentral is lK)und to observe. The only question in this case-
vonld be, whether the ship itself was not, under the circumstances, liable-
to confiscation.'

^' Id another case, where the American vessel had been condemned
witb her cargo, Dr. Nicoll gave his opinion not to prosecute an appeal,.
because the circumstance of going under convoy was, in his judgment^.
& just cause of forfeiture. This latter opinion I have not in writing,
but Mr. Wagner (the clerk charged with this business) well remembers
it But here the cause of forfeiture is not the simple fact of going
QQder convoy, but the attempting, in a we«tra2 vessel, to shelter the
goods of an enemy by means of the convoy ; and, therefore, if this dis-
tinction be correct, an American vessel with an American cargo may
innocently go under convoy. But why do this with neutral property t
^^use a belligerent power, without regarding treaties or the law of
nations, makes prize of such property. If, however, such unwarranta-
ble captures are not made (and this, I suppose, you judged to be the
fact in respect to our vessels trading with Great Britain and Ireland)
tberecanbe no reason for seeking convoys ; and the doing it might
Ifi^e offense to the Government against which it was requested. But
vbenever that Government has no scruple to interrupt and injure our
lawful commerce, by means of her armed vessels, we can have no scru-
P^® to accept protection from the convoys of her enemies. The only
<inestioQ then will be whether the Government shall formally request
tbe convoy t This 48 a question of some delicacy, as it regards the
foreign power to whom the request shall be made, on the score of ob-
^Won. But if for the sake of preserving a lucrative or necessary
^e that power voluntarily offers, or, on the request of individuah^
S'^nts the requisite convoys, are we then to refuse them 1 Clearly
^>ot, and such is the sense of the President.''

Mr. Pickering, Sec. of State, to Mr. King, May 9, 1797. MS8. Inst., Ministers.

" It is an ordinary duty of the naval force of a neutral, during either
«ivU or foreign wars, to convoy merchant vessel&of the nation to which.

317

§ 346.] WAR. [chap, xvil

it belongs to the ports of the belligerents. This, however, should not
be done in contravention of belligerent rights as defined by the law
of nations or by treaty. The only limitations of the rights to convoy
recognized by the treaty between the United States and Mexico are
those contained in the 24th article, which declares that when vessels
are under convoy, the verbal declaration of the commander of the con-
voy, on his word, of honor, that the vessels under his protection belong
to the nation whose flag he carries, and, when they are bound to an
enemy's port, that they have no contraband goods on board shall be
sufficient. With these conditions the United States have at all tim^
been willing to comply,"

Mr. Forsyth, Sec. of State, to Mr. Monasterio, May 18, 1837. MSS. Notes, Mex.

" Calhoun asked (at a Cabinet meeting on October 26, 1822), if we
could authorize the merchant vessel itself to resist the belligerent
right of search. I said no ; and that the British claimed the right of
searching convoyed vessels, but that we never admitted that right, and
that the opposite principle was that of the armed neutrality. They
maintained that a convoy was a pledge on the part of the convoying
nation that the convoyed vessel has no articles of contraband on board,
and is not going to a blockaded port, and the word of honor of the
commander of the convoy to that effect must be given. But, I added,
if we could itistruct our officer to give convoy at all, we cannot allow
him to submit to the search by foreigners of a vessel under his charge,
for it is placing our officer and the nation itself in an attitude of infe-
riority and humiliation. The President agreed with this opinion, and
Mr. Calhoun declared his acquiescence in it, and it was determined that
the instructions to Biddle should be drawn accordingly."

5 J. Q. Adams's Mem., 86.

'< The act of sailing under belligerent or neutral convoy is of itself a
violation of neutrality, and the ship and cargo if caught in delicto are
justly confiscable ; and further, if resistance be necessary, as in my
opinion it is not, to perfect the offense, still, that the resistance of the
convoy is to all purposes thi resistance of the associated fleet. • • •
I am unable to perceive any solid foundation on which to rest a dis-
tinction between the resistance of a neutral and of an enemy master.

'^ I cannot bring my mind to believe that a neutral can charter an
armed enemy ship, and victual and man her with an enemy crew
* * * with the avowed purpose and necessary intent that she should
resist every enemy ; that he should take on board hostile shipments
or freight, commissions, and profits • • • • that he/»n be the entire
projector and conductor of the voyage, and co-operate in all the plans
of the owner to render resistance to search secure and effectual ; and
that yet, notwithstanding all this conduct, by the law of nations he
may shelter his property from confiscation, and claim the privileges of
an inoffensive neutral.^

Story, J. ; The Nereide, 9 Cranch, 445, 453, 454 ; dissenting opinion. See opin^
ion of court by MarshaU, C. J., $upra, $ 343.

318

CHIP. XVII.] BULES OF WARFARE TO BE OBSERVED. [§§ 347, 348.

IV. RULES OF CIVILIZED WARFARE TO BE OBSERVED.

(I) Spies and their treatment.
§ 347.

^^ A spy is a person sent by one belligerent to gain secret information
of tbe forces and defenses of the other, to be used for hostile purposes.
According to practice he may nse deception under the penalty of being
lawfolly hanged if detected. To give this odious name and character
to a confidential agent of a nentral ppwer, bearing the commission of
his conntry, and sent for a purpose fully warranted by the law of na-
tions, is not only to abuse language but also to confound all just ideas,
and to announce the wildest and most extravagant notions, such as
certainly were not to have been expected in a grave diplomatic paper ]
and the President directs the undersigned to say to Mr. HUlsemann
that the American Government would regard such an imputation on
it by the Cabinet of Austria, as that it employed spies, and that in a
<)Qarrel none of its own, as distinctly offensive, if it did not presume,
^ it is willing to presume, that the word used in the original German
vas not of equivalent meaning with ' spy' in the English language, or
that in some other way the employment of such an opprobrious term
<nay be explained. Had the Imperial Government of Austria subjected
Ur. Hann to the treatment of a spy it would have placed itself without
^he pale of civilized nations, and the Cabinet of Vienna may be assured
that if it had carried, or attempted to carry, any such lawless purpose
uito effect in the case of an authorized agent of this Government, the
spirit of the people of this country ^ould have demanded immediate
hostilities to be waged by the utmost exertion of the power of the Be-
Piblic, military and naval.''

Mr. Webster, Seo. of St-ate, to Mr. HIllsemaiiD, Deo. 21, 1850. MSS. Notes,

Germ. States. See farther as to Mr. Mann's case, tiipra, $$ 49, 70.
As to Andre's case, see 3 PhiU. Int. Law (3d ed. ), 168. See also %HT^at ^ $ 225, 226.

(2) Prisoners akd their treatment.

(a) GENERAL RULES.

§348.

^'An American dtisen, being a pilot, may lawfully exerdee his usual
Actions as pilot on board of any vessel-of-war ; and if during his em-
ployment on board an engagement takes place, his being on board is
^ot to be considered as criminal, but accidental and innocent."

Hr. Randolph, Sec. of State, to Mr, Fanchet, Sept. 17, 1794. MSS. Notes,
For. Leg.

^ French decree " that every foreigner found on board the vessels
0^ war or c^f commerce of the enemy is to be treated as a prisoner of

319

§ 348-] WAR. [chap. mi.

war, and can have no right to the protection of the diplomatic and
commercial agents of his nation,"' is in oontravoition of the law of
nations.

Hr. XadiwMi, See. of State, report, Jan. 2S, 1906.

As to treatment of Britidi priaoncn doziiif fierolntionaiy War, see 3 John
Adame' Works, 63, 163.

A subject of a foreign power, acting nnder a commission finom the
hostile Government, shoold be treated as an enemy, and confined as a
prisoner of war.

1 Op., 84. See si^ra, i 2L

^Bj the law of war either party to it may receive and list among his^
troops such as quit the other, unless there has been a previous stipula-
tion to the contrary. But when they (such refugees) have been re-
ceived, a high moral faith and irrevocable honor, sanctioned by the
usages of all nations, gives to them protection personally and security
for all that they have or may possess. They are exempt also from all
reproach firom the sovereignty to which their services have been ren-
dered. Nothing that they claim as their own can be taken from them-
upon the imputation that they had forfeited or meant to relinquish it
by the abandonment of their allegiance to the sovereignty which they
have left."

Wayne, J. ; U. S. r. Reading, 18 How., 10.

^-I have the honor to acknowledge the receipt of a letter, dated 25th
diarchy from the Acting Secretary of War, inclosing a paper compile<l
by Lieutenant-Colonel Poland, which contains the English text of the
Geneva (Bed Cross) convention (1864), of the additional articles (1868)^
and of the declaration of St Petersburg (1868) in regard to explosive
bullets. Tour Department asks for any farther information in respects-
mentioned in said paper.

^* I inclose a copy of the President's proclamation (July 26, 1882) by
which it will be seen that while this Govemmont has acceded to the
Geneva convention, its accession to the additional articles has beeu-
reserved until it shall be notified of their ratification by the signatory
powers.

^<This notification has never been given, and these articles therefore*
have not the binding force of a convention.

'*The only additional ratification of the Geneva convention uotifie<l
to this Government since July, 1882, is that of Bulgaria, March 1, 1884.

*^ The United States not being a party to the declaration of St. Peters-
burg, this Department has issued no official copy thereof. Lieutenant-
Colonel Poland's version is an essentially correct translation of the*
French copy on our files, and the signatory powers are correctly enur
merated.

320

CHAP. XVII.] TO BE CIVILIZED. [§348.

"Tbe Uuiced States lias made uo conventional agreements with other
jwuers iu regard to the subjects of these conventions and this declara-
tion."

Mr. Bajard, Sec. of State, to Mr. EDclicott, Sec. of War, April 2, 1886. MSS.
Doui. Let.

" PR0CLA3f ATION OF THS PRESIDENT OF THE UNITED STATES AXNOUNCINO ACCBB8I0N

TO THE AFORESAID ARTICLES.

"CoDcladed August 22, 1864 ; acceded to by the President March 1, 1882 ; accession
concurred in by the Senate March 16, 1882 ; proclaimed as to the original convention
(1864), but with reserve as to the additional articles July 26, 1882.

"The President's ratification of the act of accession, as transmitted to Bern, and
exchanged for the ratification of the other signatory and adhesory powers, embraces
the French text of the convention of August 22, 1864, and the additional articles of
October 20, 1868. The French text is therefore for all international purposes the
■tandard one.

" By the PreHdent of the United States of America — A proolamatUm.

" Whereas on the 22d day of August, 1864, a convention was concluded at Geneva,
Svitserland, between the states enumerated, etc., the tenor of which convention is
hereinafter subjoined : "

(Here follows the text of the original articles.)

''And whereas the several contracting parties to the said convention exchanged
the ratifications thereof at Geneva, on the 22d day of June, 1865.

"And whereas the several states hereinafter named have adhered to the said oon-
mention in yirtue of Article IX thereof, to wit : Sweden, December 13, 1864 ; Greece,
January 5-7, 1865; Great Britain, February 18, 1865; Mecklenburg-Schwerin, March
9. 1B65; Turkey, July 5, 1865 ; Wiirtemberg, June 2, 1866; Hesse, June 22, 1866 ; Ba-
varia, Jnne 30, 1866; Austria, July 21, 1866; Bussla, May 10-22, 1867; Persia, Decern-
^rd|lb74; Ronmania, November 18-30, 1874 ; Salvador, December 30, 1874; Mon-
^«)?ro, November 17-29, 1875 ; Servia, March 24, 1876 ; Bolivia, October 16, 1879 ;
Chili, November 15, 1879 ; Argentine Republic, November 25, 1879 ; Peru, April 22,
1>«); fiolgaria, March 1, 1684.

"And whereas the Swiss Confederation, in virtue of the said Article IX of said
^▼ention, has invited the United States of America to accede thereto.

^d whereas on the 20th October, 1868, certain additional articles were proposed
ttd signed at Geneva on behalf of Great Britain, Austria, Baden, Bavaria, Belgium,
^^vk, France, Italy, Netherlands, North Germany, Sweden and Norway, Switz-
erland, Turkey, and Wiirtemberg, the tenor of which additional articles is herein-
»ft««ibjoined."

(Here the text of additional articles follows :)

'*AAd whereas the President of the United State of America, by and with the ad-
^ee and consent of the Senate, did, on the first day of March, one thousand eight
hundred and eighty-two, declare that the United States accede to the said conven-
tion of the 22d of August, 1864, and also accede to the said convention of October 20,
I8fi8.

"And whereas on the ninth day of June, one thousand eight hundred and eighty-
t^o, the Federal Council of the Swiss Confederation, in virtue of the final provision
<>^ & certain minute of the exchange of ratifications of the said convention at Bern,
Iwember 22, 1864, did, by a formal declaration, accept the said adhesion of the
tnited States of America, as well in the name of the Swiss Confederation as in that
of the contracting states.

'And whereas, furthermore, the Government of the Swiss Confederation has in-
fonned the Government of the United States, that the exchange of the ratifications

S. Mis. 162— VOL. Ill 21 321

§ 348.] WAR. [chap, xm

of the afbieoaid additional articles of October, 20, 1868, to which the United Sut«8
of America have in like manner adhered as afoxeaaid, has not yet taken place betweeo
the contracting parties, and that theee articles cannot be regarded as a treaty in fhll
force and effect.

*' Now, therefore, be it known that I, Chester A. Arthor, President of the United
btates of America, have caused the said convention of Aagost 22, 1864, to be maie
puilie, to the end that the aane and everg article and elauoe thereof may he obeened atd
fulfilled leiih good faith hy the United Statee and the eUizent thereof, reserriDg, however,
the promulgation of the hereinbefore mentioned additional artidee of Oetoher 20,1868,
notwithstanding the accession of the United States of America thereto, until the ex-
change of the ratifications thereof between the several contracting ettLtee ahill hAve
been effected, and the said additional articles shall have acquired full force and effect
as an imtemaHonal treaty.

"In witness whereof I have hereanto set my hand and caused the seal of the United
States to be affixed.

'' Done at the city of Washington this twenty-sixth day of July, in the year of oar
Lord one thousand eight hundred and eighty-two, and of the Independence of the
United States, the one hundred and seventh.

« Chzstkr a. Arthxtb. [l. s.]

''By the President:

''FSBDKRICK T. FbSLINGHCTBSK,

" Secretary of State,"

The following is the convention referred to in the above procla-
mation:

CONVENTION FOB TUE AMELIORATION OF THE CONDITION OF SOLDIERS WOCXD^^

IN ARlflES IN THE FIELD.

The Swiss Confederation, Baden, Belgium, Denmark, Spain, France, Hesse, Italy*
Netherlands, Portugal, Prussia, Wtirtemberg, being equally animated by the desix^
to mitigate, as far as depeads upon them, the evils inseparable from war, to sapprefl*
their useless severities, and to ameliorate the condition of soldiers wounded on tb^
deld of battle, have resolved to conclude a convention for that purpose, and ]a>^^
named their plenipotentiaries. • • •

Who, after having exchanged their powers, found in good and due form, haveagn^^
apon the following articles :

Article I. Ambulances and military hospitals shall be acknowledged to be Deater«
and, as such, shall be protected and respected by belligerents so long as any Bick c<
wounded may be therein.

Such neutrality shall cease if the ambulances or hospitals should be held by mil^'
tary force.

Art. II. Persons employed in hospitals and ambulances, comprising the stsif (o^
superintendence, medical service, administration, transport of wounded, as well ^
chaplains, shall participate in the benefit of neutrality whilst so employed, and 9d
long as there remain any wounded to bring in or to succor.

Additional Article I. * The persons designed (designated) in Article II of tl''
convention shall continue after occupation by the enemy to give their services, a^
cording to the measure of the necessities, to the sick and the wounded of the ambC
lance or hospital which they serve.

• The Government of the United States acceded to the original articles of the "R^*
Cross" convention of 1864, but its accession to the addt/tonal articles has been reserve'
until it shall be notified of their ratification by the signatory powers. This notified
tiou has never been given, and these additional articles therefore have not the bia^
ing force of a convention.

322

niAP. XVII.] TO BE CIVILIZED. [§ 348.

\Vli«-n they shall make a demand to withdraw, the commander of the occapying
forces shall fix the moment of their departure, which he cannot under any circnm-
ounces delay, except for a short period in casu of military necewity.

AST. III. The persons designated in the preceding article (II) may, even after oo-
capatioD by the enemy, continue to fulfill their duties in the hospital or ambulance
which they serve, or may withdraw in order to rejoin the corps to which they belong.
Under such circumstances, when those persons shall cease from their functionSj they
«hall be delivered by the occupying army to the outposts of the enemy.

Abt. IV. As the equipment of military hospitals remains subject to the laws of war,
penoDs attached to such hospitals cannot, in withdrawing, carry away any articles
bat sQch as are their private property. Under the same circumstances an ambulance
«hall, OQ the contrary, retain its equipment.

Additional Article II.* Dispositions ought to be made by the belligerent powers
to mare to the persons neutralized, who may fall into the hands of the enemy army,
the complete enjoyment of their appointments. (See Additional Article VII.)

Additional Article III.* In the conditions provided for by Articles I and IV of
the coDTeution (of 1864), the denomination of ambulance applies to country hos-
pitale and other temporary establishments, which follow the troops on the field of
battle to receive there the sick and wounded.

Airr. y. Inhabitants of the country who may bring help to the wounded shall be
'^^tcd, and shall remain free. The generals of the belligerent powers shall make
it theii care to inform the inhabitants of the at>peal addressed to their humanity, and
of the neutrality which will be the consequence of it.

Any wounded man entertained and taken care of in a house shall be considered
u A protection thereto. Any inhabit-ant who shall have entertained wounded men
in his honse shall be exempted from the quartering of troops, as well as from a part
of the contributions of war which may be imposed.

ADDinoNAL Article IV.* Conformably to the spirit of Article V, of the conven-
tion (of 1864), and under the reserves mentioned in the protocol of 1»64, it is explained
that, as regards the division of the charges relative to the lodgment of troops and the
€ontribadons of war, account will only be taken in an equitable degree of the char-
itable zeal exhibited by the inhabitants.

^. yi. Wounded or sick soldiers shall be entertained and taken care of, to what-
erer nation they may belong.

Commanders-in-chief shall have the power to deliver immediately to the outposts
of the enemy soldiers who have been wounded in an engagement, when circum-
ctances permit thia to be done, and with the consent of both parties.

Those who are recognized after their wounds are healed as incapable of serving
•ball be sent back to their country.

The others may also be sent back, on condition of not again bearing arms during
the continuance of the war,

Evacuations, together with the persons under whose directions they take place,
•ball be protected by an absolute neutrality.

ADDinosAL Article V.* In extension of Article VI of the convention (of ISfrt),
|t is Btipnlated that, with the reservation of officers, the detention of whom may be of
i^nance to the success of the war, and within the limits fixed by the second para-
l^pb of this article, the wounded who have fallen into the hands of the enemy, al
though they may not have been recognized as incapable of service, ought to be sent
b^k to their country after their wounds are healed, or sooner if it be possible, on
condition always of not resuming their arms during the continuance of the war.

^' VII. A distinctive and uniform flag shall be adopted for hospitals, ambulances,
*^ oyacnstion8.t It must, on every occasion, be accompanied by the national flag.

* See note to Additional Article I.

t See note under Article X for definition of evacuations.

323

§ 348.] WAK. [chap, xvil

An arm badge Bhall also be allowed for individuals nentralized, bnt the delirerj
thereof shall be left to military authority.

The flag and the arm badge shall bear a red cross on a white ground.

Art. yin. The details of execution of the present convention shall be regulated
by the commanders-in-chief of belligerent armies, according to the instmctions of
their respective Gtovemments, and in conformity with the general principles laid
down in this convention.

Art. IX. The high contracting powers have agreed to communicate the presesi
convention to those Governments which have not foond it convenient to send plenl
potentiaries to the international conference at Geneva, with an invitation to acced.^
thereto. The protocol is for that purpose left open.

Art. X. The present convention shall be ratified, and the ratification shall be ex
changed at Berne in four months, or sooner if poesible.

In witness whereof the respective plenipotentiaries have signed the same, and ha*^
afiQxed thereto the seal of their arms.

Done at Geneva, the twenty-second day of August, one thousand eight hundre
and sixty-four.

(5i^^9ia<arr0t.>

(The remaining articles of the convention of 1868, not published above are :)

Concerning the tnaHne.

Additional Article YI. The boats, which are at their risk and peril, during anc
after the combat, pick up, or which having picked up the shipwrecked or the wounded,
convey them on board of a neutral or hospital ship, shall enjoy, until the oompletioo
of their mission, such a degree of neutrality as the circumstances of the combat and
the situation of the vessels in conflict will allow to be applied to them.

The appreciation of the circumstances is confided to the humanity of all the coD'
batants.

The shipwrecked and the wounded persons so picked up and saved cannot serr^
during the continuance of the war.

Additional Article VII. Every person employed in the religious, medical, oT
hospital service of any captured vessel is declared neutral. In quitting the vessel^
he carries away the articles and the instruments of surgery, which are his private
property. (See following article.)

Additional Article VIII. Every person designated in the preceding article (VH?
ought to continue to ftilfill his functions on board of the captured vessel, to assist if
the evacuations of the wounded made by the victorious party, after which he oagh'C
to be free to rejoin his country, conformably to the second paragraph of the fln^
additional article above mentioned.

The stipulations of the second additional article above mentioned are applicable
to the treatment of these persons, (See Additional Article II.)

Additional Article EX. Military hospital vessels remain subject to the laws oi
war, in what regards their equipment, they become the property of the captor; ba**
the latter cannot divert them from their special occupation during the contioaano^
of the war.

Additional articles proposed to the above, together with discussions thereon b^
the French and British Governments, are given in a pamphlet by Colons
Poland, published in 1886, on the convention of Geneva. With this ac^
given the results of the Brussels conference of 1874, Dr. Lieber's instructioc»
for the government of the armies of the United States, and other illustrati^
documents.

The laws of war, in reference to the persons of belligerents, are discussed in
Fiore*8 droit int. (2d ed., 1885, trans, by Antolne), chap. vii.

324

OHAP. XVn,J TO BE CIVILIZED. [§ 34«,

"A prisoner of war who escapes may be shot, or otherwise killed in his fliK^t; but
neither death nor any other punishment shall be inflicted upon him simply for his
attempt to escape, which the law of war does not consider a crime. Stricter means
of secarity shall be used after an unsuccessful attempt at escape.

"If, boweverj a oozLspiracy is discovered, the purpose of which is a united or general
€Kape, the conspirators may be rigorously punished, even with death ; and capital
ponishment may also be inflicted upon prisoners of war discovered to have plotted
rebellion against the authorities of the captors, whether in union with the fellow
prisoners or other persons."

Instructions for the government of armies of the United States in the field,
quoted in 2 Halleck's Int. Law (Baker's ed.), 44.

"^iso&ers of war may be released from captivity by exchange, and, under certain
eircomstances, by parole.

"The term parole designates the pledge of individual good faith and honor to do,
<»r to omit doing, certain acts after he who gives his parole shall have been dismissed
vhoUj or partially, firom the power of the captor.

"The pledge of the parole is always an individual, but not a private act.

"The parole applies chiefly to prisoners of war whom the captor allows to return
to their country, or to live in greater freedom within the captor's country or territory,
«D conditions stated in the parole.

"Release of prisoners of war by exchange is the general rule, release by parole is
the ezoeption.

"Breaking the parole is punished with death when the person breaking the parole
uctptnred again.

''Aeenrate lists, therefore, of the paroled persons must be kept by the belligerents."

Hid.

"In April, 1885, General Orant wrote to General Lee that he proposed to receive
<heiurrender of the Army of Northern Virginia on the following terms, viz :

" 1. That rolls of all the officers and men were to be made in duplicate, one copy to
^ givoD to an officer of the selection of the former, the other to be retained by whom-
*^Ter the latter might appoint.

"'2. That the officers give their individual paroles not to take arms against the
^vernment of the United States until properly exchanged, and each commander of
^eoffipany or regiment to sign a like parole for his men. The arms, artillery, and
poblic property to be parked and stacked, and turned over to the officers appointed
by the former to receive them. That this do not include the side-arms of the officers,
nor their private horses or baggage.

"3. That, this being done, each officer and man shall be allowed to return to his
"Ome, anil shall not be disturbed by the United States authority so long as they ob-
•^e their paroles and the laws in force where they reside.

"General Lee accepted these terms on the same day, and the other rebel arruies
wb^eqaently surrendered on substantially the same terms.

'By an agreement made the same month bet^veen General Johnston, commanding
the Confederate army, and Major- Greneral Sherman, commanding the Army of the
united States, the Confederate armies then in existence were to be disbanded and
•'Mi^ncted to their several State capitals, therein to deposit their arms and public
P'^Wy in the State arsenal: and each officer and man to agree to cease from acts of
*w, and to abide the action of both State and Federal authorities. The number of
anns and mnnitions of war to be' reported to the Chief of Ordnance at Washington,
w^ect to the future action of the Congress of the United States, and in the mean
time to be used solely to maintain peace and order within the borders of the different
**»tet. The Executive of the United States to recognize the several State govem-
tteata, on their officers and legislatures taking the oaths prescribed by the Constitu-

325

§ 348a.] WAR. [chap, xvil

tion of the United States. The Federal courts in the Beveral States to be re-established ;
the people and inhabitants of those States to be guaranteed their political rights and
franchise so far as the Exeoative could do so. The executive authority of the Gov-
emment of the United States not to disturb any of the people by reason of the war, sa
long as they lived in peace and quiet. In fact, a general amnesty to be established."

2 Halleck's lut. Law (Baker's ed.), 349.

As to exchange of prisoners, see 3 John Adams' Works, 63, 163; 7 iM(2., 13, 4L

(b) ARBUTHNOT AND AMBRISTER.

§348a.

*< * When at war' (says Vattel) ^ with a ferocious nation, which observe*
no' rules and grants no quarter, they may be chastised in the persons oi
those of them who may be taken ; they are of the number of the guilty
and by this rigor the attempt ma^^ be made of bringing them to a sens<
of the laws of humanity.' And again: ^As a general has the rigit o
sacrificing the lives of his enemies to his own safety or that of his pec
pie, if he has to contend with an inhuman enemy, often guilty of sucr
excesses, he may take the lives of some of his imsoners, and treat thei
as his own people have been treated.' The justification of these prino
pies is found in their salutary efficacy, for termor and for example.

" It is thus only that the barbarities of Indians can be successfall
, encountered. It is thus only fhat the worse than Indian barbarities <
European impostors, pretending authority from their Governments, bti
always disavowed, can be punished and arrested. • ♦ •

"The two Englishmen, executed by order of General Jackson wer
not only identified with the savages with whom they were carrying oi
war against the United States, but one of them was the mover and pro
moter of the war, which, without his interference and false promises tc
the Indians of support from the British Government, never would have
happened. The other was the instrument of war agafhst Spain as well
as the United States, commissioned by McGregor and expedited by
Woodbine, upon their project of conquering Florida with these Indians
and negroes. Accomplices of the savages, and, sinning against theit
better knowledge, worse than savages. General Jackson, x>08sessed oi
their persons and of the proofs of their guilt, might, by the lawful and
ordinary usages of war, have hung them both without the formality oi
a trial. To allow them every possible opportunity of refuting the proof»i
or of showing any circumstance in extenuation of their crimes, he gav€
them the benefit of trial by a court-martial of highly respectable ofBcer^
The defense of one consisted solely and exclusively of technical canl<
at the nature of part of the evidence ; the other confessed his guilt

Mr. Adams, Sec. of State, to Mr. Erving, Nov. 28, 1818. MSS. Inst., Mioistei^
4 Am. St. Pap. (For. Bel.), 544; adopted and approved in Lawrence^
Wheaton, 588. See 8upra, $( 190, 243.

The court-martial in the case of Arbuthnot and Ambrister consists
of Maj. Gen, E. P.Gaines, president; members, Colonel King, Colons

326

CHAP. XVII.] TO BE CIVILIZED. [§ 348a.

Williams, Lieutenant Colonel Gibson, Major Muhlenberg, Major Mont-
gomery, Captain Vashan, Colonel Dyer, Lientenant-Colonel Lindsay,
Lientenant-Colonel Elliott, Major Fanning, Major Minton, Captain Crit-
tendeD, Lientenant Glassel.

The coart met and was sworn on April 26, 1818. The trial occupied
more than two days, and a great mass of testimony was taken. The tirst
charge against Arbuthnot was for "exciting the Creek Indians to war
against the United States;" the second was for "acting as a spy, aid-
ing and comforting the enemy, and snpplying them with the means of
war." Both charges were sustained by specitications. A third charge
followed, of exciting the Indians to mnrder Hambly and Doyle ; but this
charge was withdrawn, as not within the jurisdiction of the court. Two-
thirds of the court agreed to a finding that "the court, after mdture de-
liberation, on the evidence adduced, find the prisoner, A. Arbuthnot,
guilty of the first charge, and guilty of the second charge, leaving out
the words 'acting as a spy;' and after mature reflection sentence him,
A. Arbuthnot, to be suspended by the neck until he is dead."

Ambrister was charged with "levying war against the United Statea,''
by taking command of hostile Indians and ordering a party of them
" to give battle to an army of the United States.'' He was found guilty,
ftnd was sentenced to be shot ; but this was afterwards reconsidered,
and commuted to fifty stripes and a year's imprisonment. The next
moFDiDg General Jackson issued the following order:

" The commanding general approves the finding and sentence of the
coort in the case of A. Arbuthnot, and approves the finding and first
sentence of the court in the case of Robert C. Ambrister, and disap-
proves the reconsideration of the sentence of the honorable court in this
case.

/'It appears from the evidence and pleading of the prisoner that he
did lead and command, within the territory of Spain (being a subject
^^ Great Britain), the Indians at war against the United States, these
nations being at peace. It is an established principle of the law of na-
tions, that any individual of a nation making war against the citizens
of any other nation, they being at peace, forfeits his allegiance and be-
comes an outlaw and pirate. This is the case with Eobert C. Ambris-
ter, clearly shown by the evidence adduced."

If the mling of the court-martial rests upon the reason given by
General Jackson when affirming it, it cannot be sustained. It is not a
violation of the law of nations for a subject of a peaceful neutral power
^volunteer his services to a belligerent; nor does such a volunteer,
oy taking part in belligerent warfare, "forfeit his allegiance or become"
an outlaw and pirate. There has been no war in which a part of the
ooinbatant« on both sides have not been drawn from states at peace
^th both of the belligerents. This was eminently the case with the
American Revolution ; the British army being largely manned by for-
^i)fp auxiliaries, the army of the United States taking some of its most
^Diinent officers from France and Germany.

U does not follow, however, that the action of General Jackson may
?ot be sustained when applied to savage warfare. Such a warfare had
"^n waging between the United States and the Indians whom the defend-
ants Were charged with inciting to war. On November 30, 1817, not five
J^onths before the court-martial, a boat, containing forty soldiers of the
ttnited States, under the command of Lieutenant Scott, seven soldiers'
^ves, and five little children, while on its way up the Appalachicola

327

§ 348a.] WAR. [chap, xvr

River, uot far from Fort Scott, reached a point where a large body (
Semiuoles were iu ambash. A volley of shot was fired on the boat, b
which Lieutenant Scott was killed and all his command either killed (
wounded. The assailants, who had previously been not only unseen bi
unsuspected, plunged into the water and boarded the boat, which wa
close to the shore. Those on board who were still living were mass;
cred, with the exception of one woman, who was carried away by the Ii
dians, and of four men, who escaped by swimming to the opposil
shore, two of them only, however, succeeding in reaching Fort Scot
All the others were scalped, and the children were snatched by the heel
and their heads crushed by being dashed against the boat. Nor ws
this all. In the course of the following week an attack was made, in tb
same way, on other boats which were ascending the river, and it wasnc
till after two men were killed and thirteen wounded, that the survivoi
succeeded in making their way to Fort Scott. This was the kind (
i4 war" which Arbuthnot and Ambrister were charged with inciting. ]
was, therefore, an organized system of assassination and rapine, not wai
and those who incited it might well be regarded, not prisoners of wai
but accessories before the fact to such assassination and rapine, an
justly condemned to death. Whether these two defendants were guilt
of this offense is a question of fact, dependent, not merely on the evidenc
as reported to us, but upon conditions which were notorious at tb
time, and which, therefore, did not require proof. It was establishe
that the savages not only received the arms by which their massacre
were effected from foreign aid, but were under the belief that the
were supported by Englishmen in their uprising ; and in the evidenc
that is reported to us, there is much to show that Arbuthnot and An
brister dexterously fanned the flames as well as supplied the fuel. T^
important circumstances, also, are to be considered in forming our est
mate of the finding of the court. First, the members of the court we.
men of high character, who, from their participation in this very ca«
puign, were cognizant of the kind of warfare which the accused we
charged with instigating; secondly, the British Government, after*
careful investigation of the facts, if not acquiescing in the rightfulne
of the action of the court-martial, at least made no complaint of it
involving a violation of international law.

Supra, i 243.

As to forfeiture of right to govemineBtal protection by abandonment of »I
glance, see supra^ ^ 190.

" The necessity of my reviewing with particularity the proofs agaioj
each of these unhappy sufferers (Arbuthnot and Ambrister) had bee
superseded, I observed, by what had passed at our interview ^Mr. Rosl
and Lord Castlereagh) on the seventh. This Government itself bad ac
quiesced in the reality of their offenses. I would content myself witl
superadding that the President believes that these two individuals
in connection with Nicholls and Woodbine, had been the prime mover
in the recent Indian war. That without their instigation it never wouU
have taken place, any more than the butcheries which preceded an^
provoked it ; the butchery of Mrs. Garrett and her children ; the butcb
ery of a boat's crew, with a midshipman at their head, deputed from i
national vessel, and ascending in time of peace the Appalachicola on ^
lawful errand ; the butchery in time of peace at one stroke, upon anoth^
occasion, of a party of more than thirty Americans, amongst whici

328

cn^p. xvn.] TO be civilized. * [§ 348a.

vrereboth women and children, with jnany other butcheries alike au-
thentic and shocking."

Mr. Rush, If inister at London, to Mr. J. Q. Adams, Sec. of State, Jan. 12, 1819.
MSS. Dispatches, Gr. Brit. See suprUf $ 216.

" A« matters now stand, we shall have no diflSculty whatever with the
British Cabinet respecting these executions. • • • I perceive, from
Bome proceedings in Congress as well as in our newspapers, what might
l)e ('onsidered as a little curious, had not analogous things occurred be-
fore in the history of parties with us. I mean a strenuous denunciation
of these executions by some of our own people, at a time when the
British Government itself is refusing to stretch out its hand in behalf
of the oflfenders."

Mr. Rash, minister at London, to Mr. Monroe, President, Jan. 17, 1819 (unoffi-
cial). MSS. Monroe Pap., Dept. of State.

^; The execution of Arbuthnot and Ambrister is also making much
noise, I mean only out of doors } for 1 am happy to add, as yet, this
Government has taken no part whatever, so far as is known to me, in
these senseless and premature clamors.''

Same to same, Ang. 13, 181S ; ibid.

'' Ontof doors theexcitement seemed to rise higher and higher. Stocks
^iperienced a slight fall. The newspapers kept up their fire. Little
8«<jualnted with the true character of the transaction, they gave vent
to an|(iy declamation. They fiercely denounced the Gk)vemment of the
United States. Tyrant, ruffian, murderer, were among the epithets ap-
plied to their commanding general. He was exhibited in placards
throQgh the streets. The journals, without distinction of party, united
^ these attacks. The Whig, and others in opposition, took the lead.
Those in the Tory interest, although more restrained, gave them conn-
tenance. In themidst of all this passion, the ministry stood firm. Bet-
^r informed, more just, they had made up their minds not to risk the
P^^ of the two countries on grounds so untenable. It forms an in-
stance of the intelligence and strength of a Government, disregarding
^ne first clamors of a powerful press, and first erroneous impulses of an
JJniost universal public feeling. At a later day of my mission, Lord
^astlereagh said to me that a war might have been produced on this
^^^^ion, ' if the ministry had but held up a finger.' "

Hash's Residence at Conrt of London, etc., 304 jf, 338.

Ilie most favorable view of Arbuthnot's character and conduct, in con-
Jectiott with the offenses for which he was tried, is that which is given
"y Mr. Parton, in the second volume of his Life of Jackson, ch. 34 ff.
W also 6 Hildreth's United States, 643.) For a whole generation the
^•al of Arbuthnot and Ambrister was a party issue ; and the opponents
^General Jackson and of his administration made the alleged atrocity
Y ^ke proceedings one of the chief grounds of opposition to General
''^ckson's election, and to his subsequent administration. In times of
Bach gieat bitterness of political feeling as then existed, it was difficult
^^f the opponents of General Jackson, who embraced most of the men
^* cultivation and literary power in the land, to take an unbiased view
^ the procedure. But now, when these events have receded into his-
^» it may be safely said that, while General Jackson's reason for
*^iiig the action of the court is badly expressed, the action of the

329

§ 3486.] WAR. [chap.

court was in itself right, and the* execntion sustainable under the L
of nations.

Arbuthnot's forfeiture of British protection is considered supra ^^ ^
190 ; his loss of title to protection by misconduct, Bupra^ § 243,

As to atrocities to piisoners by Indians in tlie British service in the war of lfc=*. j ^
see 6 Hiidreth's United States, 394.

"The o\\\y question for the. British Government was, if the case v
one which called for retribution, and whether they should Interfere
the protection of British subjects who engage, without the consen t; ^3f
their Government, in the service of states at war with each otlx
but at peace with their Government. Any British subject who
gages in such foreign service, without permission, forfeits the prot^^^c-
tion of his country and becomes liable to military punishment if tfc^®
party by whom he is taken chooses to carry the rights of war to th^^^
cruel severity. This is a principle admitted by the law of nation ^^
and which, in the policy of the law of nations, has been frequentK- ^
adopted. It is obvious that if it were to be maintained that a coa^^'
try should hold out protection to every adventurer who enters intr^^
foreign service, the assertion of such a principle would lead it iut::::^^ ^
interminable warfare. The case of Ambrister stands on the groun
that he was taken aiding the enemy, and although General Jackson
conduct was most atrocious in inflicting upon him a capital punishmen
and contrary to the sentence of the court-martial, that was a qnestio
between the general and his Government. Arbuthnot's case stands o
a different ground. He was not taken in arms, but he was proved
a political servant rather than as a military agent — ^to have aflord
equal aid and assistance to the enemy, and could not be held to be
empt from punishment; he had placed himself in the same position
if he bore arms. And it was on these considerations that the abov
mentioned motion was negatived."

2 Halleck's Int. Law (Baker's ed.), 70. The above is part of a note by Sir
Baker. See, also, snpra, $$ 190, 243.

For a fuU vindication of General Jackson's action, see Mr. J. Q. Adams' ins
tion to Mr. Erving, of Nov. 28, 1818, quoted in part at the beginning of t
section.

In the Brit, and For. St. Pap. for 1818-'19 (vol. 6), 326, will be found the (
respondence with Great Britain relative to the war with the Seminole
dians, in which the proceedings against Arbuthnot and Ambrister
reviewed. The extracts include tinier alia) the instructions of Mr. Ada
Sec. of State, to Mr. Erving, Nov. Id and Dec. 2, 1818, General Jack
letter to the governor of Pensacol a, together with full notes of the tris^l o^
Arbuthnot and Ambrister, letters from Arbuthnot, and subsequent corre-
spondence with Greneral Jackson and General Gaines.

Retorsion and reprisal, in their general relations, are considered in *
prior section, supra, § 318.

The British Government, havino: sent to England, early in 1813, ^
be tried for treason, twenty-three Irishmen, naturalized in the Unit^
States, who had been captured in vessels of the United States, Cot^-

B'ess authorized the President to retaliate. Under this act, Gen6i*{
earborn placed in close confinement twenty-three prisoners taken ^

ITHAP. XVII.] TO BE CIVILIZED. [§ 348c.

Fort George. General Prevost, under the express directions of Lord
Bathnrst, thereupon ordered thecloseimprisonmentof double the num-
ber of commissioned or uncommissioned United States officers. This
^as followed by a threat of " unmitigated severity against the American
citizens and villages" in case the system of retaliation was pursued.
3Ir. Madison having retorted by putting in confinement a similar nnm-
t3er of British officers taken by the United States, General Prevost im-
mediately retorted by subjecting to the same discipline all his prisoners
^whatsoever. The difficulty was aggravated by the denunciation by
leading New England Federalists of " this policy of exposing our own
citizens to imprisonment and death for the sake of a set of foreign
renegailes, as they were bitterly described," "and the escape of some of
the imprisoned British officers from Worcester jail gave very general
satisfaction." (6 Hildreth's Hist., U. S., 446.) (Mr. Hildreth's attach-
ment to the Federalists, it must be remembered, gives to statements
finch as this peculiar weight.) In Massachusetts this sentiment took
€iffect in a statute forbidding the use of the State jails to the United
States for prisoners of war ; and the jailers were directed to discharge
ftU prisoners of war after thirty days* confinement. An act of Congress
^as at once passed authorizing the United States marshals, when the
State jails were refused, to provide other places of confinement, and
tbe legislature of Pennsylvania at dnce. gran ted it& prisons for this
purpose. A better temper, however, soon came over the British Gov-
erameiit, by whom this system had been instituted. A party of United
States officers, who were prisoners of war in England, were released
on parole, with instructions to state to the President that the twenty-
three prisoners who had been charged with treason in England had
not been tried, but remained on the usual basis of prisoners of war.
This led to the dismissal on parole of all the officers of both sides.

Aiito treatment of prisoners of war in the war of 1812, see 3 Am. St. Pap. (For.
Rel.), 630. See Lawrence com. snr Wheat., 3, 229.

The correspondence between Vice-Admiral Cochrane and Mr. Monroe, in 1814,
as to reprisals, is given 8upra, $ 318.

(d) DARTMOOR PRISONERS.

S348o.

^ the announcement of the ratification of tbe treaty of Ghent there
^^ naturally some disorder among the American prisoners of war con-
^^ at Dartmoor, near Plymouth, who were not as yet released. On
^Pnl 6, 1815, there was some slight disturbance, and indications of an
attempt, at least of one or two, to break loose. The captain on guard
^^'^cted the alarm bell to be sounded, which caused a rush of prisoners,
most of whom had no part whatever in the disorder, to the place of alarm.
^^Uien ordered the prisoners to their yards, and directed a squad of
*^Mier8 to charge them. The crowd of prisoners was great; they
^ould Dot, and indeed, in the crush of the narrow passage in which
•% were, could not, immediately retreat ; and it was said by some of
^^^ witnesses that stones were thrown from among them at the soldiers,
"^^^gh this last fact was negatived by a great preponderance of testi-
^^ny. An order to fire was given, though by whom it was not clearly
^"Own, and this firing, on a perfectly defenseless crowd, was continued
Ml seven persons were killed, thirty dangerously and thirty slightly
founded. A commission ^sonsisting of Mr. F. S. Larpent, representing
^ British Oovemment, and Mr. Charles King^ deputed by the Amer-

3S1

§ 348rf.] WAR. [chap, xvil

can mission iu Londoi], baviug visited the scene of action and exam-
ined into the facta, reported that " this firing (at the outset) was justi-
fiable in a military point of view," but that '* it is very difficult to find
any justification for the further renewal and continuance of the firing,"
which, is attributed to *' the state of individual irritation and exaspera-
tion on the part of the soldiers who followed the prisoners into their
yards." Lord Castlereagh, on receiving this report, expressed, on May
22, 1815, the *' disapprobation " of the Prince Regent at the conduct of
the troops, and his desire " to make a compensation to the widows and
families of the sufferers." Mr, Monroe, Secretary of State, on being
informed of this action, sent on December 11, 1885, to Mr. Baker,
British charge d'affaires at Washington, a note in which he said: ^*It is
painful to touch on this unfortunate event, from the deep distress it has
caused the whole American people. This repugnance is increased by
the consideration that our Governments, though penetrated with regret,
do not agree in sentiment resi)ecting the conduct of the parties engaged
in it. Whilst the President declines accepting the provision contem-
plated by His Boyal Highness the Prince Regent, he nevertheless does
full justice to the motives which dictated it."

The evidence taken in the case is given in 4 Am. St. Pap. (For. Rel.), 2Af,

In a prior section the case .of the Dartmoor prisoners is discussed in
connection with the question of apology and satisfaction. Supra^ § 315c.

(0) CASES IN MEXICAN WAR.

§348d.

'< Prisoners of war are to be considered as unfortunate and not as
criminal, and are to be treated accordingly, although the question of
detention or liberation is one affecting the interest of the captor alone,
and therefore one with which no other Government ought to interfere
in any way; yet the right to detain by no means implies the right t(v
dispose of the prisoners at the pleasure of the captor. That right in —
volves certain duties, among them that of providing the prisoners witl*—
the necessaries of life and abstaining from the infliction of any punish —
mentupon them which they may not have merited by an offense againsKz
the laws of the country since they were taken."

Mr. Webster, Sec. of State, to Mr. Ellis, Feb. 26, 1842. MSS. Inst., Mex.

The Government of the United States having acknowledged the i:
dependence of Texas, and Texas being at war with Mexico, if a citize:
oi the United States captured when with a Texas army by Mexica
forces should be treated in Mexico as a rebel and not as a prisoner
war, on the ground that Mexico had not acknowledged Texas as a be^^
ligerent, "after his release had been demanded by this Goverumem^"*^
consequences of the most serious character would certainly arise.''

Mr. Webster, Sec. of State, to Mr. Thompson, Apr. 5, 1842. MSS. lust., Mts^:^
For acknowledgment of liberation of sncb prisoners, see same to same, Sept. ^

1842.
As protesting against the Mexican doctrine that aU ''foreigners" inyadS-V^-

Mexico with the Texan armies should be granted no quarter, see Mr.

shor, Sec. of State, to Mr. Thompson, July 27, 1842.

332

CHAP, xvil] to be civilized. [§ 348A

''By the law and practice of civilized nations, enemies' subjects taken
in arms may be made prisoners of war, bat every person found in the
train of an army is not to be considered as therefore a belligerent or
an enemy. In all wars and in all countries multitudes of persons follow
tbe march of armies for the purposes of traflBc or from motives of crri-
osity or the influence of other causes who neither expect to be nor rea-
sonably can be considered belligerents. Whoever in the Texan expe-
dition to Santa F6 was commissioned or enrolled for the military service
of Texas, or, being armed, was in the pay of that Government and
engaged in an expedition hostile to Mexico, may be considered as her
enemy, and might lawfully, therefore, be detained as a prisoner of war.
This is not to be doubted, and by the general progress of modem nations
it is trne that the fact of having been found in arms with others ad-
mitted to be armed for belligerent purposes raises a presumption of '
bosrile character. In many cases, and especially in regard to European
^ars in modem times, it might be diflficult to repel the force of this pre-
'•^nmption. It is still, however, but a presumption, because it is never-
theless true that a man may be found in arms with no hostile intentions.
^6 may have assumed arms for other purposes, and may agjbert a pacific
character with which the fact of his being more or less armed would be
entirely consistent. In former and less civilized ages cases of this
®ort existed without number in European society. When the peace of
^•onimunities was less firmly established by efficient laws, and when,
therefore, men often traveled' armed for their own defense, or when in-
^^iduals being armed according to the fashion of the age, yet often
J^wrneyed under the protection of military escorts or bodies of soldiers,
^^^ possession of arms was no evidence of hostile character, circum-
stances of the times sufficiently explaining such appearances consist-
ently ^ith pacific intentions; and circumstances of the country may
^Pel the presumption of hostility as well as circumstances of the tim^s
^r the manners of a particular age. • • •

'* There would be no meaning in that well-settled principle of the law

^^ Nations which exempts men of letters and other classes of non-com-

oatants from the liability of being made prisoners of war if it were an

^HB-wer to any claim for such exemption that the person making it was

^^ted with a military force, or journeying under its protection. As to

tte assertion that it is against the law of Mexico for foreigners to pass

into it across the line of Texas, it is with no little surpri8e that the

^^xic^n secretary of state is found to assert this reason for making

^^^» Kendall a prisoner.'^

^ Mr. Webster, Seo. of State, to Mr. Thompson, Apr. 5, 1842. MSS. Inst.^Mez.

6 Webster's Works, 427, 432.

Prisoners taken from a Texan hostile expedition in Mexico in 1840
(^exieoBot having at the time acknowledged Texan independence) are
^ ^ i^egarded as prisoners of war, and cannot be treated as subject to

333

§ 349.] WAR. [chap, xvil

the manicipal laws of Mexico. "Any proceeding founded on this idea
would undoubtedly be attended with the most serious consequences.
It is now several years since the independence of Texas as a separate
Government has been acknowledged by the United States, and she has
since been recognized in that character by several of the most consid-
erable powers of Europe. The war between her and Mexico, which has
continued so long and with such success that for a long time there has
been no hostile foot in Texas, is a public war, and as such it has been
and will be regarded by this Government. It is not now an outbreak
of rebellion — a fresh insurrection — the parties to which may be treated
as rebels. The contest, supposed, indeed, to have been substantially
ended, has at least advanced far beyond that point. It is a public war,
and persons captured in the course of it, who are detained at all, are
to be detained as prisoners of war, and not otherwise. It is true that
the independence of Texas has not been recognized by Mexico. It is
equally true that the independence of Mexico has only been recently
recognized by Spain. But the United States, having acknowledged both
the independence of Mexico before Spain acknowledged it and the inde-
peudence of Texas, although Mexico has not yet acknowledged it, stands
iu the same relation toward both these Governments, and is as much
bound to protexst its citizens in a proper intercourse with Texas against
injuries by the Government of Mexico as it would have been to protect
such citizens in a like intercourse with Mexico against injuries by
Spain."

Ibid., 434.

(3) Wanton destruction prohibited

§349.

866 App., Vol. Ill, J 349.

The burning in 1814 by the British of the President's residence, of the
Capitol, and of other buildings in Washington, was an outrage and an in-
dignity unexampled in modern times ; and was remarkable &om the fact
that the injury it produced to Great Britain was immeasurably greater
than that it produced to the United States. It is true that build-
ings associated with the settlement of the Government at Washing-
ton were destroyed ; but these could be readily, with scarce a conscious-
ness of the loss, be replaced. It is true, also, that valuable records
of the Government were burned or carried off, and that this loss is
one which cannot be fully made up. But to Great Britain the penalty
inflicted was summary and effective. The invaders were almost im-
mediately ignominiously driven back to their ships, with the humiliating
stigma attached to a horde of baffled marauders. Whatever party divis-
ions existed iu the United States as to the policy of the war ceased when
it was found in what way this war was to be conducted by (treat
Britain. Throughout the continent of Europe there was not a publicist
who spoke on the subject who did not condemn the outrage as a disgrace
to those who inflicted it and as a gross violation of the laws of war.
Napoleon, it was said, had been spoken of as reckless, and yet, though be
had occupied almost every capital of Europe, so far from burning pub-
lio buildingSj he sheltered them from injury by putting them under

334

CHAP. XVIL] burning OF WASHINGTON. [§ 349.

special guards. It is trae that when fortified towns had been taken
after defenses unnecessarily protracted there had been sometimes hard
measure shown to the defenders, bat Washington was not a fortified
town, nor were the assailants a besieging army wearied by long service
in the trenches. They were simply a cohort of incendiaries, so it was
argued, not organized for battle,^ who, landing on an unprotected coast,
darted on a capital which was but a village, burned its public buildings,
ami then, when they met an armed force after the burning was done,
hurried back to their ships. It is no wonder, so it was further said,
' that the military power of the United States should have derived an
immense stimulas from such an outrage, nor that the battle of New Or-
leans should have been the response to the burning of Washington.

*'Tbey wantonly destroyed the public edifices having no relation in
their structure to operations of war, nor used at the time for military
annoyance ; some of these edifices being costly monuments of taste and
of the &rt8, and others depositories of the public archives, not only pre-
cious to the nation as the memorials of its origin and its early transac-
tions, bat interesting to all nations as contributions to the general stock
of historical instruction and political science."

President Madison's proclamation of Sept. 1, 1814.

The British Government, immediately after being advised of the con-
flagration, publicly thanked the officers concerned in it; and on being
subsequently informed of the death of General Boss, who was killed, the
^^y after the conflagration, in the abortive march to Baltimore, erected
a monument in Westminster Abbey to his memory. But before long it
^as discovered that the burning of Washington was as impolitic as it
vas in violation of the law of nations. The sentiment of condemnation
that then sprung up is exhibited in a speech of Sir James Mackintosh in
the House of Commons on April 11, 1815, in an address to the Prince Re-
pnton the treaty of peace. It was argued by him that *' the culpable de-
«y of the ministry in opening the negotiations of peace could be ex-
plained only on the miserable policy of protracting the war for the sake of
striking a blow against America. The disgrace of the naval war, of bal-
^ficedsoccessbetween the British navy and the new-born marineof Amer-
»^T was to be redeemed by protracted warfare, and by pouring our victo-
nousarmies upon the American continent. That opportunity, fatally for
% arose. If the congress had opened in June, it was impossible that
we should have sent out orders for the attack on Washington. We
should have been saved from that success, which heconsidered a thousand
times more disgraceful and disastrous than the worst defeat. • • •
^t was a success which had made our naval power hateful and alarming
to all Europe. It was a success which gave the hearts of the American
P^ple to e'#ery enemy who might rise against England. It was an euter-
Pnse which most exasperated a people and least weakened a government
^' any recorded in the annals of war. For every justifiable purpose of
present warfare, it was almost impotent. To every wise object of retro-
*^pective policy, it was hostile. It was an attack, not against the strength
<>rre8onrce8of a state, but against the national honor and publicaffectious
^t a people. After twenty-five years of the fiercest warfare, in which
^l^^iT great capital of the European continent had been spared, he had
pBiost said respected, by enemies, it was reserved for England to vio-
late all that decent courtesy towards the seats of national dignity which,
^ the midst of enmity, manifest the respect of nations for each other,

335

§ 349.] WAR. [chap. XVII.

by an expedition deliberately and principally directed against palaces
of government, halls of legislation, tribunals of justice, repositories of
the maniments of property, and of the records of history ; objects,
among civilized nations, exempted from the ravages of war, and secured,
as far as possible, even from its accidental operation, because they con-
tribute nothing to the means of hostility, but are consecrated to pur-
poses of peace, and minister to the common and perpetual interest of
all human society. It* seemed to him an aggravation of this atrocious
measure that ministers had attempted to justify the destruction of a
distinguished capital as a retaliation for some violences of inferior
American officers, unauthorized and disavowed by their Government,
against he knew not what village in Upper Canada. To make such re-
taliation just, there must always be clear proof of the outrage : in gen-
eral, also, sufficient evidence that the adverse Government had refused
to make due reparation for it ; and, at least, some proportion of the pun-
ishment to the offense. Here there was very imperfect evidence of the
outrage — no proof of refusal to repair — and demonstration of the ex-
cessive and monstrous iniquity of what was falsely called retaliation.
The value of a capital is not to be estimated by its houses and ware-
houses and shops. It consisted chiefly in what could be neither num-
bered nor weighed. It was not even by the elegance or grandeur of
its monuments that it was most dear to a generous people. They
looked upon it with affection and pride as the seat of legislation, as the
sanctuary of public justice, often as linked with the memory of past
times, sometimes still more as connected with their fondest and proudest
hopes of greatness to come. To put all these respectable feelings of
a great people, sanctified by the illustrious name of Washington, on a
level with half a dozen wooden sheds in the temporary seat of a pro-
vincial government, was an act of intolerable insolence, and implied as
much contempt for the feelings of America as for the common sense of
mankind.''

30 Hansard Pari. Deb. 526/. See Dana's Wheaton, $ 351. 2 IngersoU's Hist
Late War, ser. 1, ch. viii.

'^ JS^o thing could be so unwise, to say nothing more," so said the Edin-
burgh Be view, in the year of the event, *'as our unmeaning marauding
expedition to Washington and Baltimore, which exasperated withoat
weakening, and irritated all the passions of the nation, without even
a tendency to diminish its resources — nay, which added directly to their
force, both by the indignation and unanimity which they excited and by
teaching them to feel their own strength, and to despise an enemy that,
with all his preparation and animosity could do them so little substan-
tial mischief."

24 Edinb. Rev., 254, Nov., 1814. •

Sir A. Alison, after showing his Tory proclivities by declaring that the
** battle'' of Bladensburg has done " service to the cause of historic truth
by demonstrating in a decisive manner the extreme feebleness of the
means for national protection which democratic institutions afford," goes
on to say that " it is to be regretted that the luster of the victory has
been much tarnished to the British arms by the unusual and, under the
circumstances, unwarrantable extension which they made of the ravages*
of war to the pacific or ornamental edifices of the capital."

10 Alls. Hist, of Enrope, 725.

336

CHAP. XVII.] TO BE CIVILIZED. [§ 349.

** The following propositions, drawn from the inatractions issaed for
the government of the Army of the United States in the field, com-
meod themselves to approval so mach by their moderation and by their
Boand reason, that they are given here as rales that all enlightened
powers recognize, accept, and 'act upon: Military necessity, as under-
stood by modern civilized nations, consists in the necessity of those
measarea which are indispensable for securing the ends of war, and
trhich are lawful according to the modern laws and usages of war.
Hdilitary necessity admits of all direct destruction of life or limb of armed
enemies, and of other persons whose destruction is incidentally un-
avoidable in the armed contests of the war. It allows of all destructioit
of property and obstruction of the ways and channels of traffic, travel^
or communication, and of all withholding of sustenance or means of life
from the enemy, of the appropriation of whatever an enemy's country
affords necessary for the safety and subsistence of the army, and of such
deception asdoes not involve the breaking of good faith, either pointedly
pledged regarding agreements entered into during the war, or supposed
by tbe modern law of war to exist. Military necessity does not admit of
cruelty or torture to extract confession, nor of poison, nor of wanton de-
TasUtion of a district. It admits of deception, but disdains acts of
perfidy; and, in general, it does not include any act of hostility that
makes the return to peace unnecessarily difficult."

Abdy's Kent (1678), 223. See 2 Halleck's, Int. Law (Baker's ed.), 37.

^^ Commanders, whenever admissible, inform the enemy of their inten-
tion to bombard a place, so that the non-combatants, and especially
the women and children, maybe removed before the bombardment com-
mences. But it is no infraction of the common law of war to omit thus
to inform the enemy. Surprise may be a necessity."

InBtmctions for the gorerument of armies of tbe United States iu the field. 2
Halleck's iDt. Law (Baker*8 ed.), 38.

"31. A victorious army appro])riates all public money, seizes all public
movable property until lurtlier direction by its Government, and seques-
ters for its own benefit or that of itif Government all the revenues of real
property belonging to the hostile Government or nation. The title to
^ch H'al property remains in abeyance during military occupation, and
ttntil tbe conquest is made complete. • • •

'^34. As a general rule, the property belonging to churches, to hospi-
^K or other establishments of an exclusively charitable character, to
establishments of education, or foundations for the promotion of knowl-
^ge, whether public schools, universities, academies of learning, or ob-
^fvatories, museums of the fine arts, or of a scientific character-^such
Property is not to be considered public property in the sense of para-
^yb 31; but it may bfe taxed or used when the public service may re-
qoirejt

. *'35. Classical works of art, libraries, scientific collections, or precious
J^^^tnents, such as astronomical telescopes, as well as hospitals, must
l^secared against all avoidable injury, even when they are contained
^^ fortified places whilst besieged or bombarded.
. '^36. If gnch works of art, libraries, collections, or instruments belong-
^S to a hostile nation or Government, can be removed without injury,
^**e ruler of the conquering state or nation may order them to be seized
?Da removed for the benefit of the said nation. The ultimate ownership
^ to be settled by the ensuing treaty of peace.

S. Mis. 1G2— VOL. Ill 22 337

§ 350.] WAR. [chap. xvn.

"In no case sball they be sold and given away, if captured by the
armies Of the United States, nor shall they ever be privately appro-
priated, or wantonly destroyed or injured."

InBtmctioDB for the goverDment of armies of the United States in the field. 9
2 HaUeok's Int. Law (Baker's ed.), 39 #.

' The bombardilient of unfortified towns is not permitted by the law of
nations. (See Calvo, 3d ed., vol. ii, 137.) An exception (o this rule is
recognized in cases where the inhabitants of an unfortified city oppose,
by barricades and other hostile works, the entrance of the enemy's army,
or wantonly proceed in the destruction of his property and refuse redress.

As to Grey town, see $$ 224, 315.

<^In the case of a collection of Italian paintings and prints captured
by a British vessel during the war of 1812, on their passage from Italy
to the United States, the learned judge (Sir Alexander Croke) of the
vice-admiralty court at Halifax, 'directed them to be restored to the
Academy of Arts in Philadelphia, on the ground that the arts and
sciences are admitted amongst all civilized nations to form an exception
to the severe rights of war, and to be entitled to favor and protection.
They are considered not as the peculium of this or that nation, but as
the property of mankind at large, and as belonging to the common in-
terests of the whole species; and that the restitution of such property^
to the claimants would be in conformity with the law of nations, as prac-
ticed by all civilized countries."

Twiss, Law of Nations at War (2d ed.)i 132.

V. WHO ABE ENTITLED TO BELLIGEBEXT BIGRTS,
(1) In foreign war authorization from sovereign generally necessart.

§350.

" If one citizen has a right to go to war of his own authority, every
citizen has the same. If every citizen has that right, thei^ the nation
(which is composed of all its citizens) has a right to go to war by the
authority of its individual citizens. But this is not true, either on the
general principles of society or by our Constitution, which gives that
power to Congress alone, and not to the citizen individually. Then
the first position is not true, and no citizen has a right to go to war on
his own authority, and for what he does without right he ought to be
punished."

Mr. Jefferson, Sec. of State, to Mr. Morris, Aug. 16, 1793. MSS. Inst., Ministers.
4 Jeff. Works, 37. Adopted by Mr. Webster, Seo. of State, report to Presi-
dent (Thrasher's case), Dec. 23, 1851. 6 Webster's Works, 527. (This re-
port is not on record in the Department of State.) See supra, $$ 190, 203,
229, 230, 244, 257.

" While noticing the irregularities committed on the ocean by others,
those on our own part should not be omitted nor left unprovided for.

338

CHAP. XVII.] WHO ARE ENTITLED TO BELLIGERENT RIGHTS. [§ 350.

Complaints have been received that persons residing within the United
States have taken on themselves to arm merchant vessels, and to force
a commerce into certain ports and countries in defiance of the laws of
those countries. That individuals should undertake to wage private
var, independently of the authority of their country, cannot be per-
mitted in a well ordered society. Its tendency to produce aggression
OD the laws and rights of other nations and to endanger the peace
of oor own is so obvious that I doubt not you will adopt measui-es
for restraining it effectually in future.'^

President Jefferson, Foorth Annual Message, 1804.

^^That an individual forming part of a public force, and acting under
the authority of his Government, is not to be answerable as a private
trespasser or malefactor, is a principle of public law sanctioned by the
usages of all civilized nations, and which the Government of the United
States has no inclination to dispute. • • • All that is intended to
be said at present is, that since the attack on the Caroline is avowed as
a national act, which may justify reprisals, or even general war, if the
Ooverument of the United States, in the judgment which it shall form
of the transaction and of its own duty, should see fit so to decide, yet
that it raises a question purely public and political, a question between
independent nations, and that individuals concerned in it cannot be
arrested and tried before the ordinary tribunals, as for the violation
-of municipal law.''

Mr. Webster, Sec. of State, to the Attorney-General (Mr. Crittenden), Mar. 15,
1841. 2 Curtis' Webster, 65. In $ 21, wpra^ Mr. Calhoun's reply to Mr.
Webster, in this relation, is given.

As to Caroline case, see Bupra, $ 50.

As to McLeod's case, Mr. Webster, in his speech in the Senate on the
treaty of Washington (Apr. 6, 1846) said: " McLeod's case went on in the
court of New York, and I was utterly surprised at the decision of that
cowtonthe habeas corpus. On the peril and risk of my professional
repatation, I now say that the opinion of the court of New York in that
case is not a respectable opinion, either on account of the result at which
it arrives, or the reasoning on which it proceeds.'^ In a note it is added
that the opinion had been reviewed by Judge Tallmadge, of New York
City, and that of this review Chief-Justice Spencer said that '* it refutes
anji overthrows the opinion most amply,'' and that Chancellor Kent
*^M,»'It is conclusive at every point."

5 Webster's Works, 129.

For afuU dlscnssioB of McLeod's case, see «iipra, $ 21.

^0 hostilities of any kind, except in necessary self-defense, can law-
^n^ly be practiced by one individual of a nation against an individual of
any other nation at enmity with it, but in virtue of some public au-
thority.

Talbot r. Janson, 3 Dall., 133.

339

$351.] WAE. [chap, xva

The fact that the commander of a private armed vessel is an aliei
enemy does not invalidate a capture made by it.

The Mary and Susan, 1 Wheat., 46.

It is an offense against the law of nations for any persons, whethei
citizens or foreigners, to go into the territory of Spain with intent t<
recover their property by their own strength, or in any other manne
than that permitted by its laws.

1 Op., 68, Lee, 1797.

*< It is necessary, in order to place the members of an army under th<
protection of the law of nations, that it shonld be commissioned by i
state. If war were to be waged by private parties, operating accordini
to the whims of individual leaders, every x)lace that was seized wouh
be sacked and outraged, and war would be the pretense to satiate pr
vate greed and spite. Hence, all civilized nations have agreed in th
position that war, to be a defense to an indictment for homicide or othe
wrong, must be conducted by a belligerent state, and that it canno
avail voluntary combatants not acting under the commission of a be!
ligerent. But freebooters, or detached bodies of volunteers, acting in
subordination to a general system, if they wear a distinctive uniform,
are to be regarded as soldiers of a belligerent army. Mr. Field, in hii»
proposed code, thus speaks: 'The following persons, and no others, are
deemed to be impressed with the military character: (1) Those who con-
stitute a part of the military forces of the nation ; and (2), Those who
are connected with the operations thereof, by the express authority of
the nation.' This was accorded to the partisans of Marion and Sumter
in the American Revolution, they being treated as belligerents by Lord
Kawdon and Lord Cornwallis, who were in succe4»sive command of the
British forces In South Carolina; by Napoleon to the German iudeiieod-
ent volunteers in the later Napoleonic campaigns ; and by the Austri-
aus, at the time of the uprising of Italy, to the forces of Garibaldi.
(Lawrence's Wheaton's Elem. of Int. Law, 627, pt. iv, chap, ii, § 8;
Dana's Wheaton, § 356 ; Bluntschli, Droit Int. Codifi6, § 569, cited by
Field, ut supra.) There must, however, be a military uuifortn, and this
test was insisted on by tbe Government of the United States in its arti-
cles of war issued in 1863, and bv the German Government in its occu-
pation of France in 1871. The privileges of belligerents attach to sub-
sidiary forces, camp followers, etc. But ununiformed predator}' guerrilla
bands are regarded as outlaws, and may be punished by a belligerent
as robbers and murderers. (Halleck's Int. Law and Laws of War, 386,
387 ; lleffter, Droit Int., § 126 ; 3 Phill. Int. Law, § 96; Lieber's Instmc
tions for the Government of Armies of the United States, § iv.) But ii
employed by the nation, they become part of its forces. (.aalleck,386.
§ 8; adopted by Field, ut supra.y^

Wbart. Com. Am. Law, $ 221.

(2) Insurgents are beluoeuents when proceeded against bv open waji.

§351.

The question of recognition of belligerency is discussed, supra^ §69
that of insurgency as a preliminary to belligerency, tii/ra, §381.

340

CHAP, XVn.] WHEN KEUTRAL TO BE HELD ENEMY. [§ 362.

VI. WHE2f ENEMTS CHARACTER IS IMPUTABLE TO NEUTRALS.
(1; When bksidino in skkmy's jurisdiction.

§352.

In other sections the liability of neatral or alien property to seizure
is considered as follows: Bights of aliens generally* § 201; snbjection
of, to local seizures, § 203 : injury of, from l^lligerent action, §§ 223 Jf.;
injory of, from mob attacks, § 226; belligerent's spoliation by neutral,
§327; neutral's spoliation by belligerent, § 228; subjection of alien to
repri^l, § 318 ; confiscation of goods of, as a war measure, § 336 ; con-
traband goods of, liable to seizure, § 375; cotton belonging to, suscepti-
bility of seizure when in belligerent lines, S§ ,203, 224-228, 353, 373.

Ab to domicil atUohing to aliens, see npraj $ 198 ; infra, $ 353.

"An answer to these notes has been delayed with the view of obtain-
=ing the opinion of the Supreme Court in the case entitled *'The United
States V. Guillem,' which it was supposed might contribute to a better
luiderstanding of the case first named. That decision having been re-
■^^ntly given, I have now the honor to transmit to you a copy of it for
yonr consideration, and to state, in reply to your application, that the
^^gality of the capture in the case of the Jeune Kelly has been inci-
dentally tried and decided, both by the district court of Louisiana and
by the Supreme Court of the United States."

Kr. Webster, Sec. of State, to M Boislecombe, Feb. 14, 1651. MSS. Notes,
France.

A neutral who places his personal property in a country occupied in
tarn by each of two belligerent armies takes the risks, and cannot after-
^&rd8 proceed against the conqueror for injuries resulting from the
•wwise of war.

Mr. Bayard, Sec. of State, to Mr. Marnaga, Jane 28, 1866. MSS. Notes, Spain.

Aneatrai, who has resided in an enemy's ^country, resumes his neu-
^i rip:ht8 as soon as he puts himself and his family in itinere to return
Itome to reside, and has a right to take with him money he has earned,
^ the means of support for himself and his family. Such property,
it was further hold, is not forfeited by a breach of blockade by the ves-

^l on board of which he has taken passage if he personally is in no

fcult

U. 8. 9, Onillem, 11 How., 47. See Una oaee considered in dispatch from Bir.
Hoffman, Apr. 14, 1879. For. Bel., 1879. Whart. Com. Am. Law, $ 219.

^^ question how far a temporary residence of a neutral merchant in
^enemy's country imposes on such jnerchant the enemy's liability to
^Ptnre at sea, is discussed at large by Mr. Pinkney, as commissioner
™er the treaty of 1794. See Wheaton's Life of Pinkney, 246 ff.

I ^^ American citizen, residing in a foreign country, may acquire the
■commercial privileges attached to his domicil $ and, by making him-

341'

§ 352.] WAR. [CHAP. XVIL

self the subject of a foreign power, he places himself out of the protec-
tion of the United States while within the territory of the sovereign to
whom he has sworn allegiance.

Mnrray v. The Charming Betaey, 2 Cranch, 64.

A Spanish subject, who comes to the United States in time of peace
to carry on trade, and remains here engaged in trade after a war hag
been begun between Spain and Great Britain, is to be deemed an Amer-
ican merchant h^ the law of domicil, although by the law of Spain the
tracie in which he was engaged could be carried on only by a Spanish
subject; his neutral character depending, not on the kind of trade ia
which he was engaged, but on his domicil.

Livingston v, Maryland InB. Co., 7 Cranch, SOG.

The acceptance and use of an enemy's license on a voyage to a neu-
tral port, prosecuted in furtherance of the enemy's avowed objects, i&
illegal, and subjects vessel and cargo to confiscation. It is not neces-
sary, in order to subject the property to condemnation, that the persoo
granting the license should be duly authorized to grant it, provided th^^
person receiving it takes it with the expectation that it will protect hi^-
property from the enemy.

The Anrora, 8 Cranch, 203. As to license, see infra, $ 3B8.

If a person who has acquired a domicil in an enemy's country caa»^
property to be shipped before the war be declared, or before its decl^^
ration be known, it is, like other enemies' property, liable to captar^*
Bnt national character which a man acquires by residence may be throw
off at pleasure by a return to his native country, or even by leaving tli
country in which he has resided for another.

The Venus, ibid,, 253.

The domicil of a neutral or citizen in an enemy's countiry subject
his property embarked in trade to capture on the high seas.

Ibid. : The Frances, ibid., 335 ; S. P., ibid., 363.

If, upon the breaking out of a war with this country, our citize*:^ ^
have a right to withdraw their property from the enemy's country, ^
must be done within a reasonable time. Eleven months after the de?^^
laration of war is too late.

The St Lawrence, 9 Cranch, 120.

A detention in the enemy's country by perils of the sea, or an act ^
the enemy, does not render unlawful a voyage lawful in its iuceptior^ "

The Mary, ibid., 126.

Shipments made by merchants actually domiciled in the enetn^''
country at the breaking out of a war partake of the nature of cue
trade, and, as such, are subject to capture.

The Mary and Susan, 1 Whea*., 46.

:HAP. XVII.] WHEN NEUTRAL TO BE HELD ENEMY. [§ 352.

The share of a partner in a neutral house is, jure hellij subject to
coufiscation where his own domicil is in a hostile country*.

The Antonia Johanna, ibid., 159.

A native citizen of the United States who emigrated before a dec-
laration of war to a neutral country, and there acquired a dofflicil,
afterward returning to the United States during the war and reacquir-
ing his native domicil, is to be held as recovering his American
citizenship, so that he could not afterward, ^a^ranfe bello^ acquire a
neutral domicil by again emigrating to his adopted country.

The Dos Hermanos, 2 Wheat., 76.

Mere casual return to his native country of a merchant who is
, domiciled in a neutral country at the time of capture does not revive
bis native domicil, it appearing that he left his commercial establish-
ment in the neutral country to be conducted by his clerks in his ab-
sence, and that he visited his native country merely on mercantile busi-
ness, intending to return to his adopted country.

The Friendschaft, 3 Whetft., 14.

Tlie property of a house of trade established in the enemy's country
is condemnable as prize, whatever may be the personal domicil of the

partners.

Ihid,y 4 Wheat., 105.

All persons, whether foreigners or not, residing within the territory
occupied by the hostile party in the civil war in the United States,
»re liable to be treated as enemies.

The Prize Cases, 2 Black, 635 ; The Venice, 2 Wall., 258.

'^Itis said, that though remaining in rebel territory, Mrs. Alexan-
der has no personal sympathy with the rebel cause, and that her
property therefore cannot be regarded as enemy property 5 but this
<^Qrt cannot inquire into the personal character and dispositions of
individual inhabitants of enemy territory. We must be govern^ by
^0 principle of public law, so often announced from this bench, as ap-
plicable alike to civil and international wars, that all the people of
^^b State or district in insurrection against the United States must
be regarded as enemies, until, by the action of the legislature and the
executive, or otherwise, that relation is thoroughly and permanently
changed"

Chase, C. J. ; Mrs. Alexandei-'s Cotton, 2 Wall., 419.

As to cotton as contraband, see $$ 203, 224, 2 8, 373. As to claims for spolia-
tion of neutral, see Bupra^ $} 227 ff; infra, $ 353; App., Vol. Ill, J 352.

-^ien friends who remain in the country of the enemy after the dec-
oration of war have impressed upon them so much the character of
demies that trading with them becomes illegal, and all property so
^cqtjired is liable to confiscation.

I The William BufiBlev, 5 Wall 377.

1 352.J WAR. [chap, XVIL

Domicil in such cases becomes an important consideration, becaase
every person is to be considered in snch proceedings as belonging to
that country where he has his domicil, whatever may be his native or
adopted country.

Ibid.

The court has never gone further in protecting the property of citi-
zens residing during the rebellion in the Confederate States from jadi-
•cial sale than to declare that where such citizen has been driven from
his home by a special military order and forbidden to return, judicial
proceedings against him were void.

University v. Finch, 18 Wall., 106.

The court reaffirms the ruling in the William Bagaley (5 Wall., 377),
that a resident of a section in rebellion should leave it as soon as prac-
ticable and adhere to the regular established Government; and fur-
thermore holds that one who, abandoning his home, enters the military
lines of the enemy and is in sympathy and co-operation with those who
strive by armed force to overthrow the Union, is, during his stay there,
an enemy of the Government, and liable to be treated as such, both as
to his person and property.

Gat«8 V. Goodloe, 101 U. 8., 612.

As to abandonment of citizenship, see suprOf $$ 176-190, 216.

As to seiznre in other cases, see supra, $$ 201. 203, 223, 226-228, 318, 336.

As we have seen, partnership property sent to sea by a partner dotn-
idled in an enemy's country partakes of the character of such partnef
(Tiie William Bagaley, 5 Wall., 377), though this taint does not read
to the separate property of a partner having a neutral domicil. (Ibiii
The Sally Magee, Blatch. Pr. Ca., 382 ; The Aigburtl), ibid.y 635.) |

That a nentral's residence in an enemy's country exposes his property to eneai'
risks, see The Gray Jacket, 5 Wall., 342 ; The Pioneer, Blatch. Pr. Ca., i
The Prince Leopold, ihid, , 89 ; The Lilla, 2 Spragne, 177. And see, more tti
titpro, $$ 198> 223 ; App., Vol. Ill, $ 3R2, f

According to Chancellor Kent, the principle that *^for all commeir
purposes the domicil of the party, without reference to the plaol
birth, becomes the test of national character, has been repeateidlyi
explicitly admitted in the courts of the United States." *^lf hi
eides" (here "domicil" and "residence" are treated as convertibi
Chancellor Kent, which, if the latter term be regarded as defininif
rule, would largely extend belligerent rights) " in a belligerent coif
his property is liable to capture as enemy's property, and if he M
in a neutral country, he enjoys all the privileges, and is subject
the inconveniences of the neutral trade." (1 Kent Oom., 75; The
ter, 2 Dall., 41; Maley v. Shattuck, 3 Cranch, 458; The Venus, (
253. To the same effect, see The William Bagaley, 5 Wall., 377
Cheshire, 3 Wall., 231.) Sir Kobert Phillimore, on the otbei;'
evidently accepts this position with reluctance (4 Phill., 169), /
it is reaffirmed by Mr. Dicey, who states the distinction to b^
lows: ^'A commercial domicil is such a residence in a country
i>ur]>ose of trading there as makes a person's trade or businf

CHAP. XVII.] WHEN NEUTEAL TO BE HELD ENEMY. [§ 353.

tribate to or form part of the resources of snch country, and renders
it^ therefore, reasonable that his hostile, friendly, or neutral character
should be determined by reference to the character of such country.
When a person's civil domicil is in question, the matter to be deter-
mined is whether he has or has not so. settled in a given country as to
have made it his home. When a person's commercial domicil is in
•qnestion, the matter to be determined is whether he is or is not resid-
ing in a given country with the intention of continuing to trade there."
(Dicey on Domicil, 345; see further Whart. Confl. of Laws, § 70.) This
\% clearly put; and if we accept the position that an enemy's goods may
\)e seized at sea wherever found, gives us at least a line of demarka-
tioQ readily understood and easily applied. It is, however, to be re-
gretted that the term <* domicil" should be adapted to conditions so
different as residence with intention to establish a permanent home, and
residence with intention to engage in business. The rejection of this
distlQction renders still more objectionable the claim of belligerents to
seize an enemy's goods at sea. If by an <^ enemy" is to be considere<l
any one who by his business contributes to the resouf ces of an enemy's
eonntry, it would be hard for any goods on the high seas, in any way
related to a belligerent country, to escape the meshes of the net of the
other belligerent. And even were we to hold that a commercial ^'donii-
eiI"of this kind stamps the party accepting it with the political char-
acter of the country in which he does business, the more reasonable
view is that if he engage in such business in time of peace, this ^^ domi-
cil," if not adopted as final, ceases when the sovereign of such country
enters into a war which could not have been contemplated by the party
when he engaged in the business. This is the position taken by Har-
dball, C. J., in The Venus (8 Cranch, 253), dissenting in this respect
from the majority of the court, who held to the English view. Chan-
<«llorKent (Com., i, 79) and Mr. Duer (Ins., i, 498), vindicate the dissent-
"ig opinion of the Chief Justice; Chancellor Kent saying "there is no
^OQbtof its superior solidity and justice." And even by the English
^Qrt8 a person doing business in a land in which he is not naturalized
^sallowed, on the breaking out of war, a reasonable time to leave such
1^^ and dissolve his business relations. The Gterasimo, 11 Moore, P.
%^) The Ariel, ibul.^ 119; see, for parallel cases in this country. The
.^iffiam Bagaley, 5 Wall., 377; The Gray Jacket, 5 Wall., 342. But
▼here a merchant elects to put his goods in a country engaged in war,
he impresses such goods, according to the English *view, with the politi-
^ character of such country ; and this " allows a merchant to act in
two characters, so as to protect his property connected with his h^nse
jn a neutral country, and to subject to seizure and forfeiture his effects
Wonging to the establishment in the belligerent country."

See 1 Kent Com., 81, citing, among other cases, The San Jos^, 2 Gallison, 268.
Alto rights and duties of domicil, see Bupra, H 198 Jf.

(2) When lxavino prorerty at enemy's disposal.

§353.

^^ principle that personal dispositions of the individual inhabitants
I ^^^emy territory cannot, in questions of prize, be inquired into, ap-
[ ^r^^ ^^ civil as well as foreign wars. Property captured on land by
^ officers and crews of a naval force of the United States, is not

345

^ 353.] WAR. [chap. xvn.

'< maritime prize;" even though, like cotton, it may have been a pro
erty subject of capture generally, as an element of strength to th
enemy.

Mrs. Alexander's Cottoiii 2 Wall., 404.

As to principle in this case, see farther $$ 203, 224, 228, 352, STJ.

Note. — By the act of Congress of March 12, 18C3, the proceeds c: — ^f

the sale of such property were deposited in the National Treasury, m ^o

that loyal owners might obtain restitution, on making satisfactory pro^^^f
of their loyalty in the Court of Claims.

As to cotton as contraband, s6e it^fra, i 373.

The property of a commercial house, established in the enem^^r'^
country, is subject to seizure and condemnation as prize, though BOtumie
of the partners may have a neutral domicil.

The Cheshire, 3 Wall., 231.

When a neutral, who places his vessels under belligerent control, sk^nd
engages them in belligerent trade, or permits them to be sent with con-
traband cargoes, under cover of false destination, to neutral poxts,
while the real destination is to belligerent ports, he impresses upon
them the character of the belligerents in whose service they are em-
ployed, and the vessel may be seized and condemned as enemy
property.

The Hart, ibid., 559. See wpra, $$ 223/, 227 /.

Property, the product of an enemy country, and coming from it durin
war, bears the impress of enemy's property. If it belongs to a loy^^^
citizen of the country of the captors, it is nevertheless as much liabl^
to condemnation as if owned by a citizen or subject of the hostii^
country, or by the hostile Government itself.

The only qualification of these rules is, that where, upon the brea^^'
ing out of hostilities, or as soon after as possible, the owner esca
with such property as he can take with him, or in good faith thus earl
removes his property, with the view of putting it beyond the dominio
of the hostile power, the property in such cases is exempt from thr^
liability which would otherwise attend it.

The Gray Jacket, 5 Wall., 342.

The presumption of the law of nations is against an owner w
suffers his property to continue in the hostile country for a considerah
length of time.

If a person, abandoning a hostile country, has had his property
partnership with citizens thereof, it is his duty to withdraw or disp<^^
of his interest in the firm. If he neglects to do, so, his proi)e
becomes liable as ehemy's property.

The William Bagaley, ibid,, 377; $upra, $$ 223/, 227/.
346

CHAP. XVII.J WHEN NEUTRAL TO BE HELD ENEMY. [§ 353.

Where, after active hostilities had ceased in Georgia, cotton, as pri-
vate property, was seized there by the military forces of the United
States, in obedience to an order of the commanding general, daring
their occupation and actual government of that State, it was held to
have been taken from hostile possession within the meaninfr of that
term, and was, without regard to the stattis of the owner, a legitimate
subject of capture.

Lamar v. Browne, 92 U. 8., 187- See as fo cotton^ iuprOf $$ 203, 224, 228; infrar
$373.

What shall be the subject of capture, as against an enemy, is always
within the control of every belligerent. It is the duty of his military
forces in the field to seize and hold that which is apparently so subject,
leaving the owner to make good his claim as tigainst the captor, in the
appropriate tribunal established for that purpose. In that regard they
occupy on land the same posilion that naval forces do at sea.

A person residing in an enemy's country long enough to acquire a
domidl there, is subject to the disabilities of an enemy, so far as hi&
property is concerned.

U. S. V, Cargo of the El Telegrafo, 1 Newb. Adm., 383.

A. Frenchman who had resided thirteen years in Mexico, was held to*
bave acquired a domicil in the enemy's country, subjecting him, so far
as his property was concerned, to all the disabilities of an alien enemy.

Rogers v. The Ama^do, ibid, 400.

That the question of enemy or friend depends npon the domicil, see The Ann-
Green, 1 Gallison,274 ; The Joseph, ibid., 545 ; The Francis, ibid,, 614. And
see as to domicil, saprs, $ 19ti.

If there be a house of trade established in the enemy's country, the
P^perty of all the partners in the house is condemnable as prize, not-
^thstanding some of them have a neutral residence. But such con-
liection will not affect the other separate property of the partners hav-
"*? a neutral residence. *

The San Jos^ Indiano, 2 Gallison, 268. Supra, $$ 198, 352.

I'be rule of international law is well established that a foreigner who
'^^idea in the country of a belligerent can claim no indemnity for losses
of property occasioned by acts of war of the other belligerent. Hence
•^Daerican merchants domiciled for commercial purposes at Valparaiso
^^riot sustain a claim for indemnity against Spain or Chili for losses
^ inerchandise in the conflagration caused by the bombardment of
Valparaiso by the Spanish fleet in March, 1866.

12 Op., 21, Stanbery, 18G6. Supra, $ 198.

As to neutral property under enemy's flag, see supra, § 343.

Aa to seizures of enemy's goods under neutral flags, see aupra, i 342; and see-
further, as to alien neutral's liability to seizrfre of goods, J$ 201, 203, 223^
227, 228, 318.

341

5 354.] WAR. [chap. xvn.

Vn. ADMINISTRATION BY CONQUEROB.

(1) As TO COURTS.

§364.

t3ouqttered territory, while subject to temporary military oontrol| r^
tains its municipal institutions.

Supra, $$ 3, 4.

A portion af the territory of the United States under the military
occupation of a public enemy, is deemed a foreign country with respect
to our revenue laws, and goods imported during such occupation do not
become liable to the payment of duties on the evacuation of the terri-
tory by the enemy.

U. S. V. Rice, 4 Wheat.,4246.

Neither the President nor any military officer can establish a court
in a conquered country and authorize it t8 decide upon the rights of the
United States or of individuals in prize cases, nor to administer the
law of nations. Hence the courts established or sanctioned in Mexico
during the war by the commanders of the American forces, were to be
regarded as nothing more than the agents of the military power, to as-
eist it in preserving order in the conquered territory, and to protect
the inhabitants in their persons and property while it was occupied by
the American arms. They were subject to the military power, and
their decisions under its control, whenever the commanding officer
thought proper to interfere. They were not courts of the United States,
a>nd had no right to adjudicate upon a question of prize or no prize ]
and the sentence of condemnation of such courts is a nullity, and can
have no effect upon the rights of any party.

Jecker v, Montgomery, 13 How., 515. See SneU v. Fanssatt, 1 Wash. C. C, 271;
and see 9upra, i^^ff.

It was within the authority of the President, as commander-in-chief,
to establish courts during the rebellion in portions of the insurgent ter-
ritory which were occupied by the national forces.

The Grapeshot, 9 Wall, 129.

The Constitution did not prohibit the creation by military authority
of courts for the trial of civil causes during the civil war in conquered
portions of the insurgent States. The establishment of such courts
was the exercise of the ordinary rights of conquest.

Mechanics' and Traders' Bank 17. Union Bank, 22 Wall., 276.

It will be presumed, until the contrary is proven, that a court estab-
lished by proclamation 6f the commanding general in New Orleans on
the 1st of May, 1862, on the occupation of the city by the Gk>vemment
forces, was established yith the authorization of the President.

Ibid.

CHAP. XVU.] ADMINISTRATION BY CONQUEEOB. [§ 355w

Whether a court established daring the rebellion by the proclamation
of a general commanding the Army of the United States, in a depart-
ment and State then lately in rebellion, and now held only by military
occapation — the jurisdiction of the court being nowhere clearly defined
in the order constituting it — acted, in fact, within its jurisdiction in »
case adjudged by it, where one bank of the State was claiming from*
another bank of the same State a large sum of money, is not a ques-
tion for the Federal courts to determine, but is exclusively for the propes
State court.

Ihid. See also U 3ff.

Martial law is the law of military necessity in the actual presence of
war. It is administered by the General of the Army, and is under his
supreme control.

U. S. V. Diekelman, 92 U. S., 520.

Wben any ponion of the insurgent States was in the occupation of
the forces of the United States during the rebellion, the municipal laws,,
if not suspended or superseded, were generally administered there by
tb6 ordinary tribunals for the protection and benefit of persons not in
the military service. Their continued enforcement was not for the pro-
tection or the control of officers or soldiers of the Army.

Bow V. Johnfion, 100 U. S., 158.

An officer of the Army of the United States, whilst serving in the*
enemy's country during th^ rebellion, was not liable to an action in-
the ooorts of that country for injuries resulting from his military
orders or acts ; nor could he be required by a civil tribunal to justify
or explain them upon any allegation of the injured party that they
^^ not justified by military necessity. He was subject to the laws-
^f war, and amenable only to his own Government.

Ibid,

As to limits of conrto-martial, see 1 John AdanoB' Works^ 562; 8 ibid,, 567; 2:

HaUeok'alnt. Law (Baker's ed.)^ 455 ; Whart. Cr. Pi. and Pr., ^ *J79, note.
As to martial law, see 3 John Adams' Works, 440.
As to relations of ciyil to military aathority, tee 10 John Adams' Works, IT,.

203.
As to effect of war on titles and municipal law, see Bupra, $ 4.
As to distinctions in respect to martial law, see VHiart. Cr. PI. and Pr., $ 979,.

note.

(2) As TO BXECUTIVB.

§a55.

Ha nation be not entirely subdued, its territory, when in the invader's^
^^^1 is regarded as a mere military occupation, until its fate shall be
yetennined by final treaty. If it be ceded by the treaty, the acquisition
^ wnftnned, and the ceded territory becomes a part of the nation to
^flichitis annexed, either on the terms stipulated in the treaty of cev

349

§ 355.] WAR. [chap. XVIL

sion or on sujIi as its new master shall impose. On such transfer of
territory, it has never been held that the relations of the inhabitants
with each other undergo any change. Their relations with their former
-sovereign are dissolved, and new relations are created between them
and the Government which has acquired their territory. The same act
which transfers their country transfers the allegiance of those who re-
main in it, and while the law which may be denominated political is
necessarily changed, that which regulates the intercourse and general
conduct of individualsremains in force until altered by the newly-created
power of the state.

American Ins. Co. v. 356 Bales of Cotton, 1 Pet., 511, 542. See supra, $$ 3, 4.

By the modern usage of nations, private property is not confiscated,
nor private rights annulled by a conquest ; and the same rule should
apply to an amicable cession. The people change their allegiance, their
relation to their ancient sovereign is dissolved ; but their relations to
each other, and their rights of property remain undisturbed. A cession
of territory is never understood to be a cession of the property belong-
ing to its inhabitants. The sovereign cedes that only which belongs to
him.

U. S. V. Percheman, 7 Pet., 51; and see Strother v. Lncas, 12 ifrtd., 410. See
tupra, $i 3)4, 338.

"The President, as constitutional Commander-in-Chief of the Army
and Navy, authorized (in 1847) the military and naval commander of oar
forces in California to exercise the belligerent rights of a conqueror, and
to form a civil government for the conqu^ed territory, and to impose
duties on imports and tonnage as military contributions for the support
of the government and of the army which had the conquest in posses-
sion. * * * No one can doubt that these orders of the President,
and the action of our Army and Navy commander in California, in con-
formity with them, were according to the law of arms and the right of
conquest, or that they were operative until the ratification and exchange
of a treaty of peace. Such would be the case upon general principles in
respect to war and peace between nations."

Wayne, J. ; Cross v. Harr]0on, 16 How., 190.

The authority and jurisdiction of Mexican officers in California are
held to terminate on the 7th of July, 1846. The political department
of the Government has designated that day as the period when the con-
quest of California was completed and the Mexican officers were dis-
placed, and in this respect the judiciary follows the action of the polit-
ical department.

U. 8. V, Yorba, 1 WaU., 412.

The territory of Castine, by the conquest and occupation by Greats
Britain, passed under the temporary allegiance and sovereignty of the^
British sovereign. The sovereignty of the United States over the terri —

350

CHAP. XVII.] CESSATION OF HOSTILITIES. [§^ 356, 357.

tory was suspended during such occupation, so that the laws of the
United States coiUd not be rightfully enforced there, or be obligatory
upon the inhabitants who remained and submitted to the conquerors.
Bat a territory conquered by an enemy is not to be considered as incor-
porated into the dominions of that enemy without a renunciation in a
tieaty of peace, or a long and permanent possession. Until such incor-
poration it is still entitled to the full benefit of the law of postliminy.

U. 8. V. Hayward, 2 Galliaon, 485.

Vlli. ENDING OF WAR.
(1) Bt cessation of hostilities.

§356.

*^ Conquest gives only an inchoate treaty of peace, which does not
l)©oome perfect till confirmed by the treaty of peace, and by a renun-
mtion or abandonment by the former proprietor."

Opmion of Mr. Jefferson, Sec. of State, Mar. 18, 1792. 7 Jeff. Works, 572.

The late civil war began' and terminated at different times in differ-
ent States. Its commencement may be referred to the proclamation
of blockade of the 19th of April, 1861, in those States to which it ap-
plied; and to the proclamation of blockade of the 27th of April, 1861,
in the States to which it applied. Its termination may be ref< rred, in
^arioas States, to the proclamations declaring it closed in those States.

The Protector, 12 Wall., 700 ; Brown it. Hiatts, 15 ibid., 177; Adger r. Alston,
iMd., 355; Batesville Institate v Kanffman, 18 ibid., 151.

Citizens of the loyal States were not, however, prevented from sning
<^tiien8 of the Confederate States in the Federal courts in those States
AS 800D as such courts were opened. Before any official proclamation of
the end of the civil war was made courts of the United States were held
iQthe several States which had been engaged in rebellion, and their
jnrisdictioD to hear and determine the cases brought before them as well
^^fore as after such proclamation is not open to controversy.

Mtttenon v. Howard, 18 Wall, 99. «

[These were all cases of the application of the mle that, as between citizens of
the loyal and rehellioos States, the statutes of limitation did not run daring
the lebellion, and in determining what period should be deducted for the
pendency of the war from the limitation prescribed, it was held that the
war continued until proclamation was officially made of its close. See
also App., Vol. Ill, $ 356.]

(2) Br TREATT OF PEACE.

§367.
^ft topic of treaties of peace is examined at large in a prior chapter,

351

CHAPTER XVra.

BLOCKADK

1. What B88kntial to.

(1) Most be daly institnted, i 359.

(2) Moat be notified to nentraU, i 360.

(3) Must be effeotive, ( 361.

(4) Obstmctions may be temporarily placed in channel of acceei, f 361ai.
II. Ehforcembnt of.

(1) VeaselB seeking evasion of, may be seized, i 362.

(2) Mnst be bronglit to prize conrt, $ 363.

III. Pacific blockade, $ 364.

IV. Duty of nkutral as to BLOCKADs-RUiiNma, i 365.

I. WHAT ESSENTIAL TO.
(1) Must be duly instituted.

§359.

'' On principle it might well be questioned whether this rule (the righ
to confiscate vessels bound to a blockaded port) can be applied to ^
place not completely invested by land as well as by sea. If we exaus
ine the reasoning on which is founded the right to intercept and confix
cate supplies designed for a blockaded town, it will be difficult to resi^
the conviction that its extension to towns invested by sea only is ai
unjustifiable encroachment on the rights of neutrals. But it is not c^
this departuire from principle, a departure which has received soom
sanction from practice, that we mean to complain. It is that x>orts u€j
effectually blockaded by a force capable of completely investing thes
have yet been declared in a state of blockade, and vessels attempticB
to enter therein have been seized and on that account confiscated.^

Mr. MarsbaU, Sec. of State, to Mr. King, Sept. 2a, 1800. MS8. Insf . Minister

2 Am. St. Pap. (For. Bel.), 488.
For following portion of this paper, see i^fra, ( 361.

^* If the subject of blockade, so simple in its original application, n^^
involves the most complicated questions of maritime law among i >
tions, it is to be ascribed to abuses of power on one side, to too uicb«
condescension on the other, and to the multitude of incidental c;a^^
which have arisen as precedents, establishing arbitrary and epheme^
doctrines, since the breaking down of the original bounds and la^i
marks of mutual and universal rights.

" Although the commerce of the United States haa been to a grec^^
extent than any other the victim of those gigantic abuses of pow&c'i

352

lP. XVni.] MUST. BE Dm.Y INSTITUTED. [§ 359.

never suffered without just complaiDts in iudividnal cases, and cou-
nt and strong remonstrance on the part of the Government of the
i States against the principle and practice of everything like an
iginary blockade, the hydra of lawless oppression.
^Thos it has ever been maintained by the United States thata proo-
nation or ideal blockade of an extensive coast, not supported by the
:ual presence of a naval power competent to enforce its simiUtaneous,
QStant, and effective operation on every point of such coast, is ille-
1 throughout its whole extent, even for the ports which may be in
taal blockade; otherwise every capture under a notified blockade
odd be legal, because the capture itself would be proof of the block-
ling force. This is, in general terms, one of the fundamental rules of
le law of blockade as professed and practiced by the Government of
tie United States.

^'And if this principle is to derive strength from the enormity of
longeqaences resulting from a contrary practice, it could not be better
mstained than by the terms of the original declaration of the existing
Brazilian blockade, combined with its subsequent practical application.^

Mr. Forbes, minister of the United States to Buenos Ayies, to Admiral Lobe,
commanding the Brazilian squadron blookading Buenos Ayres, Feb. 13,
1826. Brit, and For. St. Pap. (1825-^), vol. 13, 822.

The orders and decrees of the beUigerent powers of Europe affecting the com-
merce of the United States are given in 3 Am. St. Pap. (For. BeL), 263.
Count Somanzoff 's circular of May 14, 1809, as to the blockade of the Baltic, is

in 3 Am. St. Pap. (For. Bel.), 327.
Pnsident Madison's message of Jan. 12; 1810, with the accompanying papers,
relative to French blockade of ports in the Baltic, is given in 7 Wait*s St.
Pap., 342.
Hr. Pinkney's exposition of the law of blockade, in this relation, in his note of
Jan. 14, 1811, to Lord WeUesley, is given in 3 Am. St. Pap. (For. Bel.), 419.
Tlie position maintained by Great Britain in 1811 is exhibited in the notes of
Mr. Foster, British minister at Washington, to Mr. Monroe, Sec. of State,
as given in 3 Am. St. Pap. (For. Bel.), 439.
As to blockade by Spain of the ports of Santa F6, see 4 Am. St. Pap. (For. Bel.),

156.
President Monroe's message of Feb. 12, 1818, as to blockade of Santa ¥6, is in

11 Wait^s St. Pap., 473.
An elaborate and extended discussion, carried on in 1825-^, between Com-
modore Biddle, commanding the United States Navy in Brazilian waters,
and Mr. Bagnet, United States minister at Brazil, in reference to the Bra-
zilian blockades of Pemambuco and the Biver Plate, will be found in the
Brit, and For. St. Pap. for 1828-^, vol. 16, 1099/.
The message of President J. Q. Adams, of May 23, 1828, containing a mass of
oorrespondence in reference to the Brazilian blockade then recently ex-
isting, as well as to certain alleged outrages of the Brazilian Government,
is contained in House Doc. 499, 20th Cong., Ist sess. ; 6 Am. St. Pap. (For.
Bel.), 1021. See also same volume, 277 /., Brit, and For. St. Pap. (1826-'27),
ToL xiv, 1165, for further correspondence.
The blockade of Buenos Ayres by Brazil, and Mr. Baguet's demand for his pass-
port, are given in House Ex. Doc. 281, 20th Cong., 1st sess. 6 Am. St. Pap.
(For. Bel.), 1021.
^ to blockades on Mexican coast and the Bio de la Plata, see Mr. Van Buren's

meaeage of Feb. 22, 1839, House Ex. Doc. 211, 25th Cong., 3d sess.
^ to the practice of the United States as to blockade, see 3 Phill. Int, Law
• (3ded.),478.

8. Mis, 162— VOL. Jii 23 353

$ 359.] BLOCKADE. [CHAP. XVni.

The correspondence with Oreat Britain respecting the blockade of
the west coast of Mexico in 1846, is found in the Brit, and For. St
Pap. for 18i8-'49, vol. 37, 566. The documents inclade a note from
Mr. Buchanan, Secretary, to Mr. Pakenham, of December 29, 1846^
in which it is said: ''It is sufficiently apparent from the whole proc-
lamation (of Commodore Stockton) that he did not intend to estab-
lish a paper blockade. This would have been equally unwarranted by
his instructions and by the principles which the United States have
maintained in regard to blockades ever since we became an independent
nation." In a circular from Mr. Mason, Secretary of the Navy, of De-
cember 24, to the commanding officers of the United States Navy in
the Pacific, it is said that '' a lawful maritime blockade requires the
actual presence of a sufficient force stationed at the entrance of the
ports, sufficiently near to prevent communication. The only excep*
tion to this rule which requires the actual presence of an adequate
force to constitute a lawful blockade, arises out of the occasional tem-
porary absence of the blockading squadron produced by accident, as ia
the case of a storm, which does not suspend the legal operation of a
blockade. The law considers an attempt to take advantage of such an
accidental removal a fraudulent attempt to break the blockade. The
United States have at all times maintained these principles on the sub-
ject of blockade ; and you will take care not to attempt the applica-
tion of penalties for a breach of blockade, except in cases where your
right is justified by these rules. You should give general notice that
under Commodore Stockton's general notification no part on the west
side of Mexico is regarded as blockaded unless there is a sufficient
American force to maintain it Actually present, or temporarily driven
from such actual presence by storms of weather, intending to return."

*' Your dispatch of June 28, No. 10, has been received.

'< I have already', in a previous communication, informed you that
this Oovemment has not been disturbed by the action of the British
authorities in sending three regiments into Canada, nor by the an-
nouncement of the coming of British armed vessels into American
waters. These movements are certainly not very formidable in their
proportions ; and we willingly accept the explanation that they proceed,
from merely prudential motives.

'^ Doubtless it had been better if they had not been made. But wha^
Government can say that it never acts precipitately, or even papri—
cionslyt On our part the possibility of foreign intervention, sooner ot
later, in this domestic disturbance is never absent fix>m the thon^to
of this Oovemment. We are, therefore, not likely to exaggerate indi-
cations of an emergency for which we hold ourselves bound to be in a
measure always prepared.

^^ Another subject which, according to your report, was discussed in
your late interview with Lord John Sussell demands more extended re-
marks. I refer to the portion of your dispatch which is in these words;
< His lordship then said something about difficulties in New Oranad%
and the intelligence that the insurgents there had passed a law to doee
their ports. But the law officers here told him that this could not be
done as against foreign nations, except by the regular form of a bloek*

364

CHAP. XVni.] MUST BE DULY INSTITUTED. [§ 369.

ade. He did not know what we thought about it ; bat he had observed
that some such plan was said to be likely to be adopted at the coming
meeting of Congress in regard to the ports of those whom we considered
as insargents.'

<«Mach as I deprecate a reference in official commnnications of this
kind to explanations made by ministers in Parliament, not always fully
or accurately reported, and always liable to be perverted when applied
to cases not considered when the explanations are given, I neverthe-
less find it necessary, by way of elucidating the subject, to bring into
this connection the substance of a debate which is said to have taken
place in the House of Commons on the 27th of June last, and which is
as follows :

^Mr. H. Berkly asked the secretary of state for foreign affairs whether
Her Majesty's Government recognized a notification given by Sefior
Martin, minis|^r plenipotentiary to this court from the Granadian Con-
federation, better known as the Republic of New Granada, which
announces a blockade of the ports of Bio Hacha, Santa Marta, Sava-
nllla, Carthagena, and Zaporte, and which Government did Her Maj-
esty's Government recognize in the so-called Granadian Confederation.
^^Lord John Bussell said the question is one of considerable impor-
tance. The Government of New Granada has announced, not a block-
^e, bat that certain ports of New Granada are to be closed. The
opinion of Her Majesty's Government, after taking legal advice, is that
it is perfectly competent for the Government of a country in a state of
tranquillity to say which ports shall be open to trade and which shall
^closed; but in the event of insurrection or civil war in that country,
it is not competent for its Government to close the ports that are de
/«eto in the hands of the insurgents, as that would be an invasion of
international law with regard to blockade. Admiral Milne, acting on
ii^stmctions £rom Her Msgesty's Government, has ordered the com-
i^ders of Her Majesty's ships not to recognize the closing of their
PortP.

^^Since your conversation with Lord John Bussell, and also since the
debate wUch I have extracted occurred, the Congress of the United
States has by law asserted the right of this Government to close the
ports in this country which have been seized by the insurgents.

'^1 send you herewith a copy of the enactment. The connecting by
^id John Bussell of that measure when it was in prospect with what
i^ad taken place in regard to a law of New Granada, gives to the re-
l&arks which he made to you a significance that requires no especial
ilnstration. If the Government of the United States should close their
|nsnnectionary ports under the new statute, and Great Britain should,
^ pursuance of the intimation made, disregard the act, no one can
suppose for a moment that the United States would acquiesce. When
ft conflict on such a question shall arrive between the United States and
(^leat Brltam, it is not easily to be seen what maritime nation co\)\^

3&5

§ 359.] BLOCKADE. [CHAP. XYUL

keep aloof from it. It mast be confessed, therefore, that a new inci-
dent has occurred increasing the danger that what has hitherto been,
and, as we think, ought to be, a merely domestic controversy of our
own, may be enlarged into a general war among the great maritime na-
tions. Hence the necessity for endeavoring to bring about a more per-
fect understanding between the United States and Great Britain for the
regulation of their mutual relations than has yet been attained.

<' In attempting that important object I may be allowed to begin by
affirming that the President deprecates, as much as any citizen of either
country or any friend of humanity throughout the world can deprecate^
the evil of foreign wars,, to be superinduced, as he thinks unnecessa-
rily, upon the painful civil conflict in which we are engaged for the pur-
pose of defending and maintaining our national authority over our own

disloyal citizens.

'<I may add, also, for myself, that however otherwise I may at any
time have been understood, it has been an earnest and profound solici-
tude to avert foreign war that alone has prompted the emphatic and
sometimes, perhaps, impassioned remonstrances I have hitherto made
against any form or measure of recognition of the insurgents by the
Government of Great Britain. I write in the same spirit now ; and I
invoke on the part of the British Government, as I propose to exerdse
on my own, the calmness which all counselors ought to practice in de-
bates which involve the peace and happiness of mankind.

<'The United States and Great Britain have assumed incompatible,
and thus far irreconcilable, positions on the subject of the existing
insurrection.

"The United States claim and insist that the integrity of the Bepub-
lie is unbroken, and that their Government is supreme so far as foreigo
nations are concerned, as well for war as for peace, over all the States,
all sections, and all citizens, the loyal not more than the disloyal, the
patriots and the insurgents alike. Consequently they insist that the
British Government shall in no way intervene in the insurrection, or
hold commercial or other intercourse with the insurgents in derogation
of the Federal authority.

"The British Government, without having first deliberately heard
the claims of the United States, announced, through a proclamation of
the Queen, that it took notice of the insurrection as a civil war so fla-
grant as to divide this country into two belligerent parties, of which
the Federal Government constitutes one and the disloyal citizens the
other; and consequently it inferred a right of Great Britain to stand
in an attitude of neutrality between them.

"It is not my purpose at this time to vindicate the position of the
United States, nor is it my purpose to attempt to show to the Govern-
ment of Great Britain that its position is indefensible.

"The question at issue concerns the United States primarily, and
Great Britain only secondarily and incidentally. It is, as I have before

S56

IHAP. XVni.] MUST BE DULY INSTITUTED. [§ 359.

aid, a question of integrity, which is nothing less than the life of the
itepoblic itself.

'* The position which the Oovernment has taken has been dictated,
herefore, by the law of self-preservation. No nation animated by
oyal sentiments and inspired *by a generous ambition can even suffer
tself to debate with parties within or without a policy of self-preserva-
don. In assuming this position and the policy resulting from it, we
tiave done, as I think, just what Great Britain herself must, and there-
fore would, do if a domestic insurrection shqald attempt to detach Ire-
land, or Scotland, or England from the United Kingdom, while she
vould hear no argument nor enter into any debate upon the subject.
Neither adverse opinions of theoretical writers nor precedents drawn
from the practice of other nations, or, even if they could be, from her
own, would modify her course, which would be all the more vigorously
followed, if internal resistance should fortify itself with alliances
throughout the world. This is exactly the case now with the United
States.

^^3o, for obvious reasons, I refrain firom argument to prove to the
GoTemment of Great Britain the assumed error of the position it has
avowed.

'^ First, argument from a party that maintains itself to be absolutely
nght, and resolved in no case to change its convictions, becomes merely
controversial. Secondly, such argument would be only an indirect
▼&yof defending our own position, which is unchangeable. Thirdly,
the position of Great Britain has been taken upon the assumption of
a certain degree of probability of success by the insurgents in arms;
audit must be sooner or later abandoned, as that probability shall di-
Qtinish and ultimately cease, while in any case that circumstance does
i^ot affect our position or the policy which we have adopted. It must,
tbeiefore, be left to Great. Britain to do what we have done, namely,
^^ey the entire field, with the consequences of her course deemed by
^to be erroneoQS, and determine as those cbnsequences develop them-
^Ivea how long that course shall be pursued.

"While, however, thus waiving controversy on the main point, I am
tempted by a sincere conviction that Great Britain really must desire,
tt we do, that the peace of the world may not be unnecessarily broken,
to consider the attitude of the two powers, with a view to mutual for-
Wance, until reconciliation of conflicting systems shall have become
in every event impossible.
^^The British Government will, I think, admit that so soon as its
^expected, and, as we regard it, injurious, position assumed in the
Queen's proclamation became known to us, we took some pains to avert
prematnre or unnecessary collision, if it could be done without sacri-
ficing any part of the sovereignty which we had determined in every
ev^t to defend. We promptly renewed the proposition which, for-
tnnately for both parties, we had tendered before that proclamalioii^aft

367

§ 369.] • BLOCKADE. [CHAP. XVHL

ifisned, to concede as one whole undivided sovereignty to Great Brit-
am, as a friend, all the guarantees for her commerce that Bhe might
claim as a neutral firom this Government as one of her two imagined
belligerents. It seemed to us that these two great and kindred nations
might decline to be dogmatic, and act practically with a view to imme-
diate peace and ultimate good understanding.

*< So, on the other hand, it is my duty to admit, as I most frankly do,
that the directions given by the British Government that our blockade
shall be respected, and that favor or shelter shall be denied to insur-
gent privateers, together 'with the disallowance of the application of
the insurgent commissioners, have given us good reason to expect
that our complete sovereignty, though theoretically questioned in the
Queen's proclamation, would be practically respected. Lord Lyons, as
you are aware, proposed to read to me a dispatch which he had re-
ceived from his Government, afl^ming the position assumed in the
Queen's proclamation, and deducing fix>m that iK>sition claims as a
neutral to guarantees of safety to British commerce less than those
we had, as I have already stated, offered to her as a friend. I de-
clined, as you have been advised, to hear the communication, but nev-
ertheless renewed through you, as I consistently could, the offer of the
greater guarantees before tendered.

^< The case th^n seemed to me to stand thus : The two nations had,
indeed, failed to find a common ground or principle on which they could
stand together; but they had succeeded in reaching a perfect under-
standing of the nature and extent of their disagreement, and in finding
a line of mutual, practical forbearance. It was under this aspect of the
positions of the two Governments that the President thought himself
authorized to inform Congress on its coming together on the 4th of July
instant, in extra session, that the sovereignty of the United States was
practically respected by all nations.

'^ I^otbing has occurred to change this condition of affairs, unless it be
the attitude which Lord John Bussell has indicated for the British Gov-
emment in regard to an apprehended closing of the insurrectionary
ports, and the passage of the law of Congress which authorizes th^t;
measure in the discretion of the President.

^' It is my purpose not to anticipate or even indicate the decision whioli
will be made, but simply to suggest to you what you may properly aa^
advantageously say while the subject is under consideration. First.
Tou will, of course, prevent misconception of the measure by station
that the law only authorizes the President to close the i>orts in his di^'
cretion, accordingly as he shall regard exigencies now existing or her^^
after to arise.

'^ Secondly. The passage of the law, taken in connection with atteo^'
ant circumstances, does not necessarily Indicate a legislative convictioi*
that the ports ought to be closed, but only shows the purpose of Ooi*'
gress that the closing of the ports, if it is now or shall become

CHAP. XVin.] MUST BE DULY INSTITUTED. [§ 369.

sary, shall not fail for want of i>ower explicitly conferred by law. When,
on the 13th of April last, disloyal citizens defiantly Inaagnrated an
armed insorrection by the bombardment of Fort Sumter, the President's
constitutional obligation to suppress the insurrection became impera-
tive.

'^But the case was new, and had not been adequately provided for
by express law. The President called military and naval forces into
activity, instituted a blockade, and incurred great expense, for all which
no direct legal provisions existed. He convened Congress at the ear-
liest possible day to confirm these measures if they should see fit.

^' Congress, when it came together, confi*onted these facts. It has
employed itself less in directing how and in what way the TTnion shall*
be maintained, than in confirming what the President had already
done, and in putting into his hands more ample means and greater
power than he has exercised or asked.

<* The law in question was passed in this generous and patriotic spirit.
Whether it shall be put into execution to-day or to-morrow, or at what
time, will depend on the condition of things at home and abroad, and
a careful weighing of the advantages of so stringent a measure against
those which are derived from the existing blockade.

'* Thirdly. You may assure the British Government that no change
of policy now pursued, iiyuriously affiecting foreign commerce, will be
made fh>m motives of aggression against nations which practically re-
spect the sovereignty of the United States or without due considera-
tion of all the circumstances, foreign as well as domestic, bearing upon
the question. The same spirit of forbearance towards foreign nations,
arising from a desire to confine the calamities of the unhappy contest
as much as possible, and to bring it to a close by the complete restora-
tion of the authority of the Government as speedily as possibldj that
have hitherto regulated the action of the Government, will continue to
control its counsels.

'< On the other hand, you will not leave it at all doubtful that the Pres-
ident fully adheres to the position that this Government so early adopted,
and which I have so continually throughout this controversy main*
tained ; consequently he fally agrees with Congress in the principle of
law which authorizes him to (lose the ports which have been seized by
tbe insurgents, aud he will put into execution and maintain it with all
the means at his command, at the hazard of whatever consequences,
whenever it shall appear that the safety of the nation requires it.

"I cannot leave the subject without endeavoring once more, as
lliave so often done before, to induce the British Government to real-
iwthe conviction which I have more than once expressed in this cor-
wspondence, that the policy of the Government is one that is based on
interests of the greatest importance and sentiments of the highest vir-
tue, and therefore is in no case likely to be changed, whatever may be
*« Varying fortunes of the war at home or the action of foreign nations

35d

§ 359.] BLOCKADE. [CHAP. XVIIL

on this subject;, while the policy of foreign states rests on ephemeral in-
terests of commerce or of ambition merely. The policy of these United
States is not a creature of the Government but an inspiration of the
people, while the policies of foreign states are at the choice mainly of
the Governments presiding over them. If, through error, on whatever
side this civil contention shall transcend the* national bounds and in-
volve foreign states, the energies of all commercial nations, including
our own, will necessarily be turned to war, and a general carnival of the
adventurous and the reckless of all countries, at the cost of the exist-
ing commerce of the world, must ensue. Beyond that painful scene
upon the seas there lie, but dimly concealed from our vision, scenes of
devastation and desolation which will leave no roots remaining out of
which trade between the United States and Great Britain, as it has
hitherto flourished, can ever again spring up."

Mr. Seward, Seo. of State, to Mr. Adams, Jaly 21, 1861. MSS. Inst., Or. Brit.;
Dip. Corr., 1861.

. '< At the close of my dispatch, No. 17, on the subiect of my last con-
ference with Lord John Bussell, I mentioned my intention to write to Mr.
Dayton, at Paris, to know whether he felt authorized to proceed in a
simultaneous negotiation on the subject of the declaration of the con-
gress at Paris. I have now to report that I executed my purpose on
the 19th instant.

'' On the evening of the 24th I received a note from Mr. Dayton an-
nouncing his arrival in town and his wish to confer with me upon this
matter.

'< Yesterday morning I had the pleasure of a full and free conversa-
tion with him, in the course of which we carefully compared our respect-
ive instructions and the action taken under them.

'^ I am very glad he has taken the trouble to come over to see me, for
I confess that I was a little embarrassed by not knowing the precise
nature of his proposal to the French Government at the time when I
heard of it from Lord John Bussell. Had I been informed of it I should
perhaps have shaped my own course a little differently. So I doubt not
that he would have been pleased to know more exactly my own proceed-
ings as well as the more specific character of my instructions. An
hour's interview has had the effect to correct our impressions better
than could have been accomplished by an elaborate correspondence.

'^ I can now perfectly understand as well as enter into the reasona
which prompted his proposal of the declaration of Paris, connected as
it was with the modification first suggested by Mr. Marcy. There can
be no doubt that the attempt to secure such an extension of the appli-
cation of the principle contained in the first point of that declaration
was worth making, on the part of the new Administration, particularly
at a place where there was no reason to presume any disinclination to
adopt it. Neither did the reply of Mr. Thonvenel entirely preclude the
hope of ultimate success, so far a« the disposition of France may be
presumed.

^^The obstacles, if any there are, must be inferred to have been
thought to exist elsewhere. And an advance could be expected only
when the efforts to remove them had been applied with effect in the

QAA

CHAP. XVni.] MUST BE DULY INSTITUTED. [§ 359.

liroper quarter. It was, therefore, both natural and proper for Mr.
Dayton, after having made his offer, and received sach an answer, to
wait patiently until it should become apparent that such efforts had
been made, and made without success.

^^ There can be no doubt that the opposition to this modification cen-
ters here. Independently of the formal announcement of Lord John
Bussell to me that the proposition was declined, I have, from other
sources of information, some reason to believe that it springs from the
tenacity of a class of influential persons, by their age and general affln-
iUes advert to all sudden variations from established ideas. Such
people are not to be carried away by novel reasoning, however forcible.
We have cause to feel the presence of a similar power at home, though
in a vastly reduced degree.

^*A11 modifications of the public law, however beneficent, naturally
meet with honest resistance in these quarters for a time. It is to be
feared that this may have the effect of defeating, at this moment, the
application of the noble doctrines of the declaration of Paris, in the
foil expansion of :svhich they are susceptible. But to my mind the
failure to reach that extreme point will not justify the United States in
declinlDg to accept the good which is actually within their grasp. The
declaration of the leading powers of civilized Europe, made at Paris in
1^) CDgrafted upon the law of nations for the first time great principles
for which the Government of the United States had always contended

against some of those i)owers, and down to that time had contended in

vain.

"That great act was the virtual triumph of their policy all over the
globe. It was the sacrifice, on the part of Oreat Britain, of notions she
l»ad ever before held to with the most unrelenting rigidity. It would
therefore seem as if any reluctance to acknowledge this practical
anioont of benefit, obtained on the mere ground that something re-
gained to require, was calculated only to wither the laurels gained by
ow victory.

''It would almost seem like a retrograde tendency to the barbarism
of former ages. Surely it is not in the spirit of the reformed Govem-
Q^ent in America to give countenance to any sach impression. What-
ever may have been the character of the policy in later years, the ad-
vent of another and a better power should be marked by a recurrence
fo the best doctrines ever proclaimed In the national history. And if
1^ so happen that they are not now adopted by others to the exact ex-
J^Dt that we would prefer, the obvious course of wisdom would seem to
00 to accept the good which can be obtained, and patiently to await
^ther opportunity when a continuance of exertions in the same direc-
tion may enable us to secure everything that is left to be desired.'*

Mr. Adams to Mr. Seward, July 6, 1861. MSS. Dispatches, Qr. Brit. ; Dip.
Corr., 1861.

I^e blockade (in 1861-^62) '^ is a legitimate war measure intended to
^h^tthe insurrection. As I have already intimated, we are willing
^oeoDform to the law of nations as it is, or to consent to modifications
; ^^ it) upon sufficient guarantees that what we concede to other nations
*^1 be equally conceded by them. It is not the blockade that dis-
^»m European commerce ; it is the insurrection that renders the
Wockade necessary. Let the European powers discourage the insur-

361

f 359.] BLOCKADE. [CHAP. XYIIL

rection, it will periBh. The blockade has not been unreasonably pro-
tracted."

Mr. Seward, Seo. of State, to Mr. Dayton, Feb. 19, 1862. M88. Inst, France;

Dip. Corr., 1802.
As to blockade of Confederate ports, see Brit, and For. St. Pap., 1880-^61, yoL

51 ; iHd., 1864-^65, toI. 55.

<< The rule adopted by the French Government in 1861, in respect to
the civil war then existing in ttte United States, was as follows : < The
Sonthem States exhibit to foreign eyes the appearance of a Gk)vem-
xnent de faoto^ and are hence to he recognized as belligereiits, and can
employ against their adversaries such measures as are usual in war.
• • • France recognizes in them (the United States) tlie right to
establish blockades, without at the same time recognizing the Confed-
eracy as a new state, never having entered into an official relation with
it. The United States followed the same course in reference to French
interposition in Mexico, never having recognized Maximilian as Em-
peror, but never having contested his right to establish a blockade. It
is true that on August 17, 1866, President Johnson refosed to recognize
the imperial decree of July 9 declaring the blockade of Matamoras,
but this was only because the blockade was ineffective.' ( Archiv. Dip.,
1866, iv, 276.)"

FanobiUe, dn Blocns Maritime, Paris, 1882.

^^ Blockades are divided by English and American publicists into two
kinds: (1) a simple or de facto blockade and (2) a public or governmental
blockade. This is by no means a mere nominal distinction, but one
that leads to practical consequences of much importance. In cases of
capture, the rules of evidence which are applicable to one kind of block-
ade, are entirely inapplicable to the other; and what a neutral vessel
might lawfully do in case of a simple blockade, would be sufficient
cause for condemnation in case of a governmental blockade. A simph
or de facto blockade is constituted merely by the fact of an investment,
and without any necessity of a public notification. As it arises solelj:
from facts, it ceases when they terminate; its existence must, there
fore, in all cases, be established by clear and decisive evidence. Tht
burden of proof is thrown upon the captors, and they are bound t*
show that there was an actual blockade at the time of the capture,
the blockading ships were absent from their stations at the time the a' _
leged breach occurred, the captors must prove that it was accidents
and not such an absence as would dissolve the blockade. A ptiblie^
governmental blockade, is one where the investment is not only actual!
established, but where, also, a public notification of the fact is made
neutral powers by the Government, or officers of state, declaring tft=B€
blockade. Such notice to a neutral state is presumed to extend to
its subjects; and a blockade established by a public edict is presum
to continue till a public notification of its expiration. Hence
burden of proof is changed, and the captured party is now bound
re)>el the legal presumptions against him by unequivocal evidence. ^^
would, probably, not be sufficient for the neutral claimant to prove tts^^
the blockading squadron was absent, and there was no actual mv&^^'
ment at the time the alleged breach took place; he must also pro^^
that it was not an accidental and temporary absence, occasioned
storms, but that it arose from causes which, by their necessary

362

CHAP. XVra.] MUST BE DULY INSTITUTED. [§ 359

legal operation, raised the blockade. (Wheat. Elem. Int. Law, pt. iv,
ch. iii, § 28; the Neptonus, EL, 1 Bob., 170: the Betoey, 1 Bob., 331; the
Christina Margaretha, 6 Bob., 62; the Vrow Johanna, 2 Bob., 109;
Dner on Insurance, vol. i, pp. 649, 6JS9; Phillimore on Int. Law, yoL
m. § 290; the Meroorins, 1 Bob., 82; the Keptunus, H., 2 Bob., 110; the
Welvaart van Pillan, 2 Bob., 130; Ortolan, Diplomatie de la Mer, tome
ii, ch. ix; Hantefenille, Des Nations Nentres, tit ix, ch. v, § 2.)"

2 Halleek'B Int. Law (Baker's ed.), 219.

Notice from the British Government that a blockade will not be con-
sidered as existing without an actual investment, and that vessels bonnd
to an invested port will not be captured, unless previously warned off,
justifies the master of an American vessel, who has been warned ofl!^
but has, subsequently, reasonable ground to believe the blockade has
ceased, in returning to make inquiry off the port, intending to proceed
elsewhere if the blockade still continues.

Kaiyland Ins. Co. «. Wood^ 7 Cranoh, 402.

Hie right to blockade an enemy's port with a competent forcCi is a
right secured to every belligerent by the law of nations.

MoCaU V. Ifarine Ins. Co., 8 Cranch, 59.

A belligerent may blockade the port of his enemy ; but this blockade
does not, according to modem usage, extend to a neutral vessel found
in port, nor prevent her firom coming out with the cargo which was on
board when the blockade was instituted.

OliTora v. Union Ins. Co., 3 Wheat., 183.

Neutrals may question the existence of a blockade, and challenge
the legal authority of the party which has undertaken to establish it.
One belligerent, engaged in actual war, has a right to blockade the
ports of the other, and neutrals are bound to respect that right. The
blockade of the ports of the Confederacy under the proclamation of
the President of the 19th of April 1861, was valid.

The Prize Cases, 2 Black, 635; The Circassian, 2 Wall., 135; The Admiral,
3 ibid., 603.

To justify the exercise of the right of blockade, and legalize the capt-
ion of a neutral vessel for violating it, a state of actual war must exist,
ttid the neutral must have knowledge or notice that it is the inten*
tioQ of one belligerent to blockade the ports of the other.

To create the right of blockade, and other belligerent rights, as of
^ptme, as against neutrals, it is not necessary that the party claiming
them should be at war with a separate and independent power ; the
P^es to a civil war are in the same predicament as two nations who
^g^ge in a contest and have recourse to arms. A state of actual war
^^y exist without any formal declaration of it by either party ; and
^ is trae of both a civil and a foreign war.

The Prize Cases, 2 Black. 635.

36%

^ 359.] BLOCKADE. * [CHAP. XVIII.

The proclamation of blockade having allowed fifteen days for neutrals
to leave, a vessel whi( h overstays the time is liable to capture, even if
her delay was partly due to difficulty in procuring a tug, this being one
of the accidents which must have been foreseen and should have been
provided for while the vessel was remaining in port and loading a cargo
with the proclamation in view.

Ihid.

A public blockade of a city is not terminated by the occupation of
the city by the blockading belligerent ; the city itself being hostile, the
opposing enemy in the neighborhood, and the occupation limited, recent,
and subject to the vicissitudes of war. Still less does such occupation
terminate such a blockade proclaimed and maintained not only against
the city, but against the fort and district commercially dependent upon
it and blockaded by its blockade.

The Ciroaasian, 2 WaU., 135.

This ruling conflicts with Thirty Hogsheads v. Boyle, 9 Cranch, 191.
Damages were afterwards given by the Mixed Commission to the owners
of the Circassian. See Hall Int. Law., 656. Of the decision in the Cir-
cassian Professor Lorimer thus speaks :

^<A British ship, the Circassian, was actually seized and confiscated
by the American prize court for attempting to run the blockade at New
Orleans after New Orleans had been retaken and was in possession of
the North, and she was restored only under the Mixed Commission ap-
pointed by the Treaty of Washington at the close of the war. The com-
mission held that as the blockade was terminated by the recapture, the
right of a belligerent to exercise the privileges which it conferred
against a neutral vessel was at an end."

Lorimer's Law of Nations, 145.

A public blockade, that is to say, a blockade regularly notified to
neutral Oovemments, and as such distinguished from a simple blockade
or such as may be established by a naval officer acting on his own dis-
cretion or under direction of his superiors, must, in the. absence of clear
proof to the contrary, be presumed to continue until notification is given
by the blockading Government of its discontinuance.

The Circaasian, 2 Wall., 135; The Baigorry, ihid., 474.

Evidence of intent to violate blockade may be collected from bills of
lading, from letters and papers found on board the captured vessel,
from acts and words of the owners or hirers of the vessel and the ship-
pers of the cargo and their agents, and from the spoliation of papers iu
apprehension of capture.

The Ciroassian, ibid., 135.

The blockade of the coast of Xoutmna, as established on the coast of
the Southern States generally, by the President's proclamation of April
19, 1861, was not terminated by the capture of the forts below New
Orleans by Commodore Farragut and the occupation of the city by

CHAP. XVni.] MUST BE NOTIFIED. [§ 360.

General BuUer, and the proclamation of the President of the 12th of
May, 1862, declaring that after Jnne 1 the blockade of the port of New
Orleans should cease. It therefore remained in force at Oaloasieo, on
tiie western extremity of the coast of Looisiana.

The Baigony, Und., 474. The Josephine, 3 ibid., 83.

A blockade is not to be extended by constrnction.

The Peterhoff, 5 WalL, 28.

A blockade which was ^^ intended to blockade the whole coast, firom
the Oheeapeake Bay to the Bio Grande," did not indude the month of
the Bio Grande, the middle of that stream forming the boundary line
between the United States and Mexico, and the free navigation of the
liver being guaranteed by treaty. The presumption from these facts
coold be overcome only by an express declaration to that end.
iifid.

Bence trade, during the rebellion, between London and Matamoras,
two neutral places, the latter an inland port of Mexico, and close to the
Hezican boundary line, even with intent to supply, fix>m Matamoras,
Soods to Texas, then an enemy of the United States, was not unlawftal
on the ground of such violation.

(2) Must be kotifibi> to hxutbalb.

§360.

When a blockade has been abandoned and then renewed, there should
^ dther a new proclamation by the blockading sovereign, or vessels
ii^^g for the blockaded port (after notice of the withdrawal) ought
te be « premonished of their danger and permitted to change their
^orae as they might think proper."

Mr. Hadkon, Sec. of State, to Mr. C. Pinckney, Oct. 85, 1801. M8S. Inat. Min-
istem.

^The British principle which makes a notification to foreign Govem-
^ts of an intended blockade equivalent to the notice required by the
'^^of nations before the penalty can be incurred, cannot be conceded."

Hr. liadiaon, Sec. of State, report Jan. 25, 1806. MSS. Dom. Let.

^% addition to what is proposed on the subject of blockades in VI
^ Vn articles, the perseverance of Great Britain in considering a
'^cation of a blockade, and even of an intended blockade, to a for-,
^Sn Oovemment, or its ministers at London, as a notice to its citizens,
^ as rendering a vessel, whenever found in a destination to the noti-
fy port, liable to capture, calls for a special remedy. The palpable
^J^tioe of the practice is aggravated by the auxiliary rule prevailing
^ the British courts, that the blockade is to be held in legal force untQ
^Qovemmental notification be expressly rescinded, however certain
^ fMst may be that the blockade was never formed or had ofia&fiA^

3«5

§ 360.] BLOCKADE. [CHAP. XVm.

You will be at no loss for topics to enforoe the inconsistency of these in-
novations with the law of nations, with the nature of blockades, with
the safety of neutral commerce, and particularly with the communica-
tion made to this Government by order of the British Gtovernment in
the year 1804, according to which the British commanders and vice-
admiralty courts were instructed < not to consider any blockade of the
islands of Martinique and Ouadaloupe as existing unless in respect of
particular ports which may be actually invested, and then not to capt-
ure vessels bound to such ports unless they shall previously have been
warned not to enter them.' "

Mr. Madison, Seo. of State, to Mesan. Monroe and Pinkney, May 17, 1806. MS&
Inst., Ministers.

*^ On this subject it is fortunate that Great Britain has already in a
formal communication admitted the principle for which we contend. It
will be only necessary therefore to hold her to the true sense of her own
act. The words of the communication are ^ that vessels must be warned
not to enter.' The term warn technically imports a distinction between
an individual notice to vessels and a general notice by proclamation
or diplomatic communication; and the terms not to enter equally dis-
tinguishes a notice at or very near the blockaded iK>rt from a notice
directed against the original destination, or the apparent intention of
a vessel nowise approaching such a port."

Same to same, Feb. 3. 1807 ; iHd.

Notification of blockade must be made directly to the Governments
of neutral powers.

Mr. Rush, Sec. of State, to Mr. Correa, May 88, 1817. MSS. Notes, For. Leg.

'^ It will be your duty, however, to bear in mind the true principles
of blockade contended for and insisted upon by the United States.
They are well known to the world. We deny that general and diplo-
matic notifications of blockade are of binding force ; though they may
be regarded as friendly notices. Blockade must be confined to particu-
lar and specified places, with a sufficient force near to intercept the en*
try of vessels, and no vessel is subject to capture without previous
notice or due warning."

Mr. Clayton, Seo. of State, to Mr. Flennikeu, May 12, 1849. MSS. Inst., Den-
mark.

The rule requiring notice of a blockade applies, at the utmost, only
to vessels about entering a blockaded port in ignorance of the exist-
ence of the blockade.

Mr. Hnnter, Acting Sec. of State, to Mr. Sartiges, Joly 89, 1852. MSS. Kote%
France.

^^ The safest rule, in regard to the rights of both belligerents and
neutrals involved in blockade, is believed to be contained in the 18th

366

CHAP. XVIII.J MUST BE DULY NOTIFIED. [§ 360.

article of the treaty between the United States and Great Britain of the
19th of November, 1794, in the following words:

^' ^And whereas it frequently happens that vessels sail for a port or
place belonging to an enemy, withoat knowing that the same is either
besieged, blockaded, or invested,, it is agreed that every vessel so cir-
eamstanced may be turned away from such port or place, but she shall
not be detained, nor her cargo, if not contraband, be confiscated, un-
less after the notice, she shall again attempt to enter, but she shall be
f9rmitted to go to any other port or place she may think proper J
«<A similar article is contained in many other treaties between the

TJmted States and foreign powers.''

Mr. Seward, Seo. of State, to Lord Lyons, Mar. 24, 1862. MSB. Notes, Or.
Brit.

As to notification by Texas in 1842 of blockade of Mexico, see Brit, and For. St.
Pap., 1845^46, vol. 34, 12GI, 1262. This blockade, not being ''zeal," was,
on Sept. 21, 1842, declared by the British foreign office to be of no efiect.

In numerous treaties negotiated by the United States, it is provided
that, notwithstanding a diplomatic general notice of blockade, a neu-
tral vessel cannot be condemned for blockade-running unless she had
BOtioe en route that the place in question was blockaded. (Treaty with
Sweden, September 4, 1816; July 14, 1827; with Prussia, May 1, 1828;
with Greece, December 10, 1837 ; with Sardinia, November 26, 1837.)
In other treaties special notification is made dependent on the question
of the knowledge or ignorance of the party seized. (Treaty of the United
States with Great Britain, November 28, 1796 ; with France, September
30, 1800; with Hayti, November 3, 1864; with Italy, February 27, 1871.)
^*Bat notwithstanding these treaties, the Oovemment of the United
Stat^ seems to look upon the diplomatic notice as superfluous, and to
exact in all cases a special notification. The instructions of May 14, 1846,
^ting to the blockade of Mexican ports prescribe that no neutral ves-
J^ entering into a blockaded port can be captured or detained unless it
^^ receiv^ from one of the blockading squadron special notice of the
eostenoe.'' (Martens Nouv. rec. LS, 167.) The proclamation of Presi-
dent Lincoln of April 19, 1861, declares that if, with the intention to
l^ohte the blockade, a ship attempts to leave or to enter one of the
hiockaded ports, there must be an examination by the commander of
ene of the blockading vessels, who shall take due note of the fact and
^^te of the notice. Lord Lyons to Lord Bussell, May 2, 1861 ; Mr.
Sewaid to the minister of Spain, Archiv. Dip., 1861, ii, 266 ; iii, 438,
^' But the American prize courts have not accepted this opinion of
iheBxecutive, and have jhllen back on the limitations of the treaties
&hov6 mentioned ; and the Federal courts have declared that a vessel
^d be taken prize without special notice, if the officers of the vessel
^^ knowledge of the blockade, and were consequently chargeable with
^aifeith. (The Circassian, 2 Wall., 136.) »

Faachme'8 Blocna Maritime (Paris, 1882), 203, 204.

^ to notification by the United States, in 1846, of the blockade of Mexican
ports in the Pacific, see Brit, and For. St. Pap., 1845-^46, 1139.

notice may be express, to a particular Government, or to a ship, or
»» My be inferred from all the facts, among which notoriety is to be

367

§ 360.] BLOCKADE. [CHAP. XV]

especially considered. To proceed to the month of the blockaded p
on the plea of there seeking information, exposes the vessel to seric
suspicion of knowledge of blockade, and the mere hovering around
blockaded port, as if to seize some unguarded point to enter, is gron
for seizure.

See the Cornelius. 3 Wall., 214.

The treaty between the United States ftnd Oreat Britain provides tl
every vessel may be turned away &om every blockaded or besieged p
or place, which shall have sailed for the same without knowledge of t
blockade or siege ; but she s^all not be detained, nor her cargo, if i
contraband, be confiscated unless, after notice, she shall again atteu
to enter; but she shall be permitted to go to any other port or pk
she may think proper. And this treaty is conceived to be a correct <
l)osition of the present law of nations upon this point. The intent]
must be manifested in such manner as to be equivalent to an attem;

FitzsimmoDB v. Newport Ins. Co., 4 Cranoh, 185.

In the absence of snch a treaty, the courts do not require notice ; Field's O
Int. Law, i 892, citing 1 Kent Com., 150 ; The Circassian, 2 Wall., I
Wheat, on Capture, 193-207 ; The Hallie Jackson, Blatch. Prise Cases
41 ; The Empress, ibid,, 175 ; except where the vessel sails without a kno
edge of the blockade; The Nayade, 1 Newb. Adm., 366.

It is a settled rule that a vessel in a blockaded port is presumed
have notice of a blockade as soon as it commences.

The Prize Cases, 2 Black, 635.

The provision in the President's proclamation of the 19th of Api
1861, for warning vessels which approached the blockaded iK>rt8 witb
view to entering, did not protect a vessel that sailed for a blockaded pc
with knowledge of the blockade.

The Hiawatha, ihid,, 677 ; The Admiral, 3 WaU., 603.

Where a vessel, knowing of a blockade when she sails, has no just reas
to suppose it has been discontinued, her approach to the mouth of
blockaded port for inquiry is itself a breach of the blockade, and sn
jects both vessel and cargo to seizure and condemnation.

The Cheshire, 3 WaU., 231.

Knowledge of a recently established blockade may be inferred frc
facts.

The Herald, ibid., 768.

Under the proclamation of the President of April 19, 1861, only the
who are ignorant of the blockade are entitled to the warning and
dorsement mentioned in the proclamation.

The Revere, 2 Spragae, 107.

868

€HAP. XVni.] MUST BE EFFECTIVE. [§ 361.

(3) Must be BrFECTiVB.
§361.

'^ Porta not effectually blockaded by a force capable of completely
investing them have not yet been declared (by the law of nations) in a
state of blockade. ^ * ^ K the effectiveness of the blockade is dis-
pensed withy then every port of all the belligerent powers may at all times
be declared in that state (of blockade) and the commerce of neutrals is
thereby subjected to universal capture. But if this principle is strictly
adhered to, the capacity to blockade will be limited to the naval force
of the belligerent, and of consequence the mischief to neutral com-
merce cannot be very extensive. I observe that you have pressed this
reasoning on the British minister, who replies that an occasional ab-
sence of a fleet from a blockaded port ought not to change the state of
the place. Whatever force this observation may be entitled to where
that occasional absence has been produced by an accident, as a storm
▼hich for a moment blows off the fleet and forces it from its station,
which station it immediately resumes, I am persuaded that when a part
of the fleet is applied, though only for a time, to other objects, or comes
into port, the very principle requiring an effective blockade — ^which is
that the mischief can only be coextensive with the naval force of the
^Uigerent — ^requires that during such temporary absence the com-
ii^erce of neutrals to the place should be free."

Mr.ManhaU, See. of State, to Mr. King, Sept. 20, 1800. MSS. Inst., Ministera.
2 Am. St. Pap. (For. Bel.), 1800.

Here liability by neutral vessels, to capture, by belligerent cruisers
l^overiDg around a coast, cannot constitute a blockade of a port on such

coast

Mr. Madison, Sec. of State, to Mr. C. Pinckney, Oct. 25, 1801. MSS. Inat., Mia-
iaters.

'Hie law of nations requires, to constitute a blockade, that there should
be the** presence and position of a force rendering access to the pro-
*^Wted place manifestly difficult and dangerous. Every jurist of rep-
station, who treats with precision on this branch of the laws of nations,
'^ws to an actual or particular blockade."

1^. Madison, Sec. of State, to Mr. ThomtOD, Oct. 27, 1803. MSS. Dom. Let. See
also letter of Mr. Madison to Mr. Merry, Dec. 24, 1803 ; ibid,

^^^ fictitious blockades proclaimed by Great Britain and made the
P^textfor violating the commerce of neutral nations have been one of
^^ S^test abuses ever committed on the high seas. During the late
^u ^y ^®^ carried to an extravagance which would have been ridic-
7^^ if in their effects they had not inflicted such serious and exten-
. ^"^j^es on neutral nations. Ports were proclaimed in a state of

^bde previous to the arrival of any force at them, were considered
8. Mig. 162— VOL. m 24 300

§ 361.] BLOCKADE. [CHAP. XVIIL

in that state withoat regard to intermissions in the presence of the
blockading force, and the proclamations left in operation after its final
departure; the British craisers daring the whole time seizing every
vessel bonnd to snch ports, at whatever distance from them, and the
British prize courts pronouncing condemnations wherever a knowledge
of the proclamation at the time of sailing cbuld be presumed, although
it might afterwards be known that no real blockade existed. The whole
scene was a perfect mockery in which fact was sacrificed to form and
right to power and plunder. The United States were among the great-
est sufferers ; and would have been still more so, if redress for some of
the spoliations proceeding from this source had not fallen within the
provisions of an article in the treaty of 1794,''

Mr. Madison, Sec. of State, to Mr. Monroe, Jan. 5, 1804. M6S. Inst., Minietera.

<<The British Government having repealed the order in council and
the blockade of May, 18Q6, and all other illegal blockades, and having
declared that it would institute no blockade which should not be sup-
ported by an adequate force, it was thought better to leave that question
on that ground than to continue the war to obtain a more precise defi*
nition of blockade, after the other essential cause of the war, that oC
impressment, should be removed."

Mr. Monroe, 8eo. of State, to the enToys at Ghent, June 23, 1814. M8S. Inat.
Ministers.

Although the commissioners of the United States, during the coi^
ference at Ghent, were unable to obtain from Great Britain any defli.
nition which would limit blockade, the British Government from th^
time ceased to claim that blockades were effective unless supported b>^
a naval force adequate to substantially seal the port.

See 4 Am. St. Pap. (For. Bel.), 9.

^'Ko maxim of the law of nations is better established than that •
blockade shall be confined to particular ports, and that an adeqn^^
force shall be stationed at each to support it. The force should be st:^
tionary, and not a cruising squadron, and placed so near the entraiEOi
of the harbor, or mouth of the river, as to make it evidently dangerous
for a vessel to enter. I have to add that a vessel entering the pori
ought not to be seized, except in returning to it after being warned od
by the blockading squadron stationed near it."

Mr. Monroe, Sec. of State, to Mr. de Onis, Mar. dO, 1616. MS8. Notes, For. heg^

<^ This consideration ought to operate with still greater force in les^d-
ing the British. Cabinet to an adjustment of the principal objects o^
collision between neutral and belligerent interests. The unexampled
outrages upon all neutral rights which were sanctioned during the lB>tB
wars both b3' Great Britain and France, were admitted by both to b^
unwarranted by the ordinary laws of nations. They were, on both side^y
professed to be retaliations, and each party pleaded the excesses of th^
other as the justification of its own. Yet so irresistible is the tend'

370

CHAP. XVnj.^ MUST BE EFFECTIVE. [§ 361.

ency of precedent to become principle in that part of the law of nations
which has its foundations in usage, that Great Britain, in her late war
with the United States, applied against neutral maritime nations almost
all the most exceptionable doctrines and practices which she had intro-
duced during her war against France. The maritime nations were then
BO subservient to her domination that in the Kingdom of the Nether-
lands a clearance was actually refused to vessels from thence to a port
in the United States on the avowed ground that their whole coast had
^n declared by Oreat Britain to be in a state of blockade. The whole
coast in a state of blockade, while the British commerce, upon every
sea, was writhing under the torture inflicted by our armed vessels and
privateers issuing from the ports thus pretended to be in blockade!
The dereliction of the rights of maritime neutrality by alUthe allied
powers at the congress of Vienna, and at the subsequent negotiations
for settling the affairs of Europe at Paris, have so far given a tacit
sanction to all the British practices in the late wars that none of them
would have a right to complain if the United States, on the contin-
gency of a maritime war in which* they should be engaged, should ap-
ply to the neutral commerce of all those allies the doctrines which they
AQ8 suffered -Great Britain, without remonstrance, to apply against it
in her late contest with the United States."

Mr. AcUunsy Seo. of State, to Mr. Rash, Not. 16, 1817. M8S. Inst., Ministers.

^^The renewal of the war in Venezuela has been signalized on the
IWofthe Spanish commanders by proclamations of blockade unwar-
^ted by the law of nations, and by decrees regardless of that of
liainanity. With no other naval force than a single frigate, a brig, and
& Bcfaooner, employed in transporting supplies from Guracoa to Porto
C&bello, they have presumed to declare a blockade of more than twelve
I^Qndred miles of coast. To this outrage upon all the rights of neutral-
%) they have added the absurd pretension of interdicting the peaceable
<^Qimeroeof other nations with all the ports of the Spanish Main, upon
^^ pretense that it had heretofore been forbidden by the Spanish colo-
^i&llaws; and on the strength of these two inadmissible principles,
^yhave issued commissions at Porto Cabello and in the island of
^^ Bico to a swarm of privateers, which have committed extensive
^d ruinous depredations upon the lawful commerce of the United
States, as well as upon that of other nations, and particularly of Oreat
^ritaio. It was impossible that neutral nations should submit to such
^ ^8tem ; the execution has been as strongly marked with violence and
^% as was its origin with injustice. • • • The naval officers of
^ United States who have been instructed to protect our commerce
^ that quarter have been brought in conflict with two descriptions of
^wful captors, the acknowledged and the disavowed pirates from
^<>rto Bico .and Porto Cabello, and in both* cases the actual depreda-

371

§361.] BLOCKADE. ^[CHAP. XVIIL

tors have, been of the same class of Spanish subjects, and often proba-
bly the same persons."

Mr. Adams, Sec. of State, to Mr. Nelsoii, Apr. 8, 1823. MSS. Inst., MinisterB,
Lawrence's Wheaton (ed. 1863), 846, 847.

In 1827, Brazil, being a belligerent, imposing a blockade on her ene-
mies, undertook to lay down two laws of blockade, maintaining as against
United States vessels the strict rules held by the United States and as
against British vessels the laxer rales held by Great Britain. This the
British Government resisted, holding that it would recognize no block-
ade that was not effectual. Brazil was forced to give way, and the rule
the maritime powers united in imposing on the Brazilian blockade the
test of efficacy. On this Mr. J. Q. Adams, then President, thus com-
ments in his Memoirs : ^^Belligerent, she (Great Britain) tramples on
neutral rights ; neutral, she maintains them at the cannon's mouth; and
the Brazilian courts have been awed into submission."

7 J. Q. Adams' Memoirs, 385.

As to the action of our Government in respect to Key West as a port of refoge
for Sonth American belligerent crnisers, see 7 J. Q. Adams' Memoirs, 290.

For correspondence of the United States with Spain in 1822 as to blockade
Sonth America, see Brit, and FoiC St. Pap., vol. 9, 784.

<< The mandate of the Mexican Government was obviously tantamount
to a blockade by notification merely, the illegality of which has invari-
ably been asserted by the United States, and has been agreed to b^
Mexico in the treaty.^'

Mr. Forsyth, Sec. of State, to Mr. Monasterio, May 18, 1837. MSS. Notes, Me^ —

<^ A blockade, to be valid under the law of nations, must be efficient ^
that is to say, carried on by a force competent to prevent the entran<>^
of neutrals into the blockaded ports. • • • Jfeutrals proceeding
such ports cannot lawfully be captured for the mere intent, express
implied, of entering them, but must be warned off by the blockadin,.
force ; but after having thus been duly warned, if they shall again
tempt to enter, they are liable to capture and condemnation as lawfal
prize.'^

Mr. Clayton, Sec. of State, to Mr. Bowlin, Jan. 24, 1850. MSS. Dom. Let.

<< It may be admitted that neither France nor the United States has
acknowledged the legality of the blockade of an extensive coast l>y
proclamation only, and without a force to carry the same into effect. I^
may also be true that, with a view to protect innocent neutrals, proceed-
ing from a distance to a blockaded port, from capture on account of dO
honest ignorance on their part of the existence of the blockade, a pi^*
vious warning thereof, by an entry, or other mode of actual notice, on
the papers of the vessel, has been deemed advisable.''

Mr. Webster, Sec. of State, to Mr. Sartiges, June 3, 1852. MSS. Notes, Fr»0O^

^^ In some respects I think the law of blockade is unreasonably TiS'
orous towards neutrals, and they can fairly claim a relaxation of it. ^^
the decisions of the English courts of admiralty — and oura have

^72

CHAP. XVIII.] MUST BE EPPECTIVB. [§361.

erally followed their footsteps — a neatral vessel which happens to be in

a blockaded port is not permitted to depart with a cargo unless that

cargo was on board at the time when the blockade commenced or was

ftrst made known. Having visited the port in the common freedom of

trshde, a neutral vessel ought to be permitted to depart with a cargo

without regard to the time when it was received on board.''

Mr. Marcy, Seo. of State, to Mr. Baohanan, Apr. 13, 1054. MSS« Inst., Or.

Brit. House Ex. Doo. 103, 33rd Coug., Ist Seas.
Aa condemning paper blockades, see Mr. Maroy, Sec. of State, to Mr. Sartiges,

July 28, 1856. MSS. Notes, France. ,

^'Ihe blockade of an enemy's coast, in order to prevent all intercourse
with neutral powers, even for the most peaceful purpose, is a claim
which gains no additional strength by an investigation into the founda-
tion on which it rests; and the evils which have accompanied its exer-
cise call for an efficient remedy. The investment of a place by sea and
land with a view to its reduction, preventing it from receiving supplies
of men and material necessary for its defense, is a legitin^ate mode of
prosecnting hostilities which cannot be reasonably objected to, so long «
^ war is recognized as an arbiter of national disputes. But the block-
^6 of a coast or of commercial positions along it, without any regard
to nlterior military operations, and with the real design of carrying on
a war against trade, and from its very nature against the trade of
P^^able and friendly powers, instead of a war against armed men, is
a Pn)ceeding which it is difficult to reconcile with reason or with the
^^Pinlons of modern times. To watch every creek and river and harbor
^Pon an ocean frontier, in order to seize and confiscate every vessel
^th its cargo attempting to enter or go out, without any direct effect
upon the true objects of war, is a mode of conducting hostilities which
^OQld find few advocates if now first presented for consideration. Un-
fortunately, however, the right to do this has been long recognized by the
^Wofoatious, accompanied indeed with precautionary conditions, in-
^ttded to prevent abuse, but which experience has shown to be lameiit-
% inoperative. It is very desirable, therefore, that this constant
^^^ of irritation in time of war should be guarded against, and the
^^er to interrupt all intercourse with extensive regions be limited and
Precisely define(il, before, by a necessary reaction, its exercise is met
^y an armed resistance. • • •

"But Lord Stowell has borne yet more direct testimony to the cor-
l^tuess of these suggestions. In a case decided by him, he said a
Wockade is ' a sort of circumvallation, by which all correspondence and
^^munication is, as far as human force tean effect it, effectually cut
'>«;'etc''

Mr. Caae, Sec. of State, to Mr. Mason, Jaoe 27, 1659. MSS. Inst., France.

^^He undersigned. Secretary of State of the United States, has had
"• iiouor of receiving the note of Baron Gerolt of the 30th ultimo, m^V-

^361.] BLOCKADE. [CHAP. XYIIL

ing inquiries dboui the blockade of the ports in several of the States,
and would observe in reply —

*^ 1st. That the blockade will be strictly enforced upon the principles
recognized by the law of nations.

<'2d. That armed vessels of neutral states will have the right to enter
and depart from the interdicted ports.

^'3d. That merchant vessels in port at the time when the blockade
took effSect will be allowed a reasonable time for their departure.

^< 4th. The Government cannot consent that the emigrant vessels
shall enter the interdicted ports.^

Mr. Seward, Sec. of State, to Baron Qerolt, May 2, 1861. M8S. Notes, ProMia.

Temporary fortuitous absence of a blockading force, by which oc-
casional blockade-runners slip in, does not of itself break up the blockade.

Mr. Seward, Sec. of State, to Lord Lyons, May-^, 1861. MSS. Notes, Gr. Brit.

Lord Bussell, in an interview with Mr. Adams, having stated that
the British Government, in conformity with a declaration previously
made in the House of Commons, would not recognize as internationally
binding a decree of a sovereign closing certain of his ports which were
in the hands of insurgents, Mr. Seward instructed Mr. Adams that^
though there was an act of Congress authorizing the President to clos^
such ports of the United States as were held by the Confederates, th^
President, while not conceding that such action would not be interna. —
tionally valid, had not determined to enforce the act of Congress, an
regarded as satisfactory the position taken by the British Gk>vemmea
as to the requisites of blockade.

Mr. Seward, Sec. of State, to Mr. Adams, July 20, 1861. MSS. Inst., Gr. Brit.

<' The loan made by European capital is a direct engagement with tlM.^
armed insurgents, who have assumed to control, supply, and deliv^i*
cotton for the reimbursement of the money advanced, with interes't;.
You will give notice to Earl Bussell that this transaction necessarily
brings to an end all concessions, of whatever form, that have been macS^e
by this Government for mitigating or alleviating the rigor of the bloc^'k'
ade in regard to the shipment of cotton and tobacco. Nor will any titsle
of any person, whether citizen of the ITnited States or subject of a fk>r-
eign power, to any cotton or merchandise, which title is derived from
or through any pretended insurgent authority or other agency host^ile
to the United States, be respected by this Government.''

Mr. Seward, Sec. of State, to Mr. Adams, Apr. 10, 1863. MSS. Inst., Gr. Bri^-
As to blockade-mnniDg daring the oiyll war, see Senate Ex. Doo. 11, 41*^
Cong., 1st sess.

'< Only such blockades as shall be duly proclaimed and maintained l>7
adequate force, in conformity to the law of nations, will be observed aud
respected by the dnited States."^

Mr. Seward, Sec. of State, to Mr. Sallivan, June 13, 1867. MSS. Inst., Coloot'^^^
374

OHAP. XYin.] KUST BE EFFECTIVE. [§ 361.

The ITnited States Government was entitled under the law of nations
to send in 1868, without molestation from the Brazilian blockading
squadron, an armed cruiser up the river Parana to Paraguay, then at
▼ar with Brazil, the object being to bring home the minister of the
United States at Paraguay.

Mr. Seward, Sec. of State, to Mr. Webb, Aug. 17, 1668. MSS. Insi., Brazil.

^' I am aware of no instance in which the right of blockade has been
invoked for the purpose of preventing the Government of a neutral and
friendly state from communicating with its diplomatic agent accredited
to the (xovemment of the blockaded country. It is believed that safe
conducts are rarely, if ever, refhsed under such 'circumstances, and
when the refusal does take place the aggrieved party has a right to

expect sufficient reasons therefor."

Mr. Fiah, Seo. of State, to Mr. Kirk, Jnne 17, 1869. MSS. Inst., Arg. Bep. See
• ' Mpra, $ 97.

^' I have had the honor to receive your note of yesterday. It is ac-
oompanied by a copy of a circular addressed to you by the chancellor
of the Empire, relative to the supposed blockade by Turkey of the
ports of the Black Sea by proclamation only, and the indiscriminate
placing by order of that power of torpedoes in the bed of the Danube.
Although it is true that the United States did not sign and has not
since acceded to the declaration of Paris of 1856^ our reserve in this
'^pect was and has not been occasioned by any doubt as to the sound-
1^^ of the rule in regard to blockades which that instrument embodies.
^hat rule has always been regarded by this Government as the wisest,
specially in the interests of neutrals, and as founded upon texts of
public law generally received. It is probable, however, that as the flag
^^ the ITnited States, even in times of peace, is seldom seen in the
^lAck Sea, there probably will be little or no occasion for the practical
^rtion of the rule by us at this juncture. The employment of tor-
P^oes is so recent a belligerent device that it is believed the powers
^ yet have had no opportunity to consider the general regulations, if
*^) to which they should be subjected. For this reason I now forbear
^ express any opinion upon the proceeding to which you advert."

Mr. Evarts, Sec. of State, to Mr. ShiBhkiii, June 12, 1877. MSS. Notes, Rassia ;
For. Rel., 1^7. See Mr. Evarte, See. of State, to Mr. Christiancy, Aug. 8,
1879. MSS. Inst., Peru. Mr. Evarts, Seo. of State, to Mr. ChristiaDcy,
Jan. 25, 1881, ibid ; qnoted if^ra^ $ 361a.

**When threatened by civil strife or foreign war, a (Government may
^'^y be supposed to have the right to interdict traffic with any port.
, ^This carries with it the right to punish infractions of the proclaimed
^terdiction ; in other words, to enforce the declared blockade. The pri-
^^^ citizens of other Governments engaged in commercial pursuits are
^t bound to obey the proclamation, but they disobey it at their peril.
*^ is, however, no part of the international duties of the Goveriim^\il%

375

$ 361.] BLOCEADE. [dBBR^Vi^

to which aaoh citizen belong to enforce against them the declaratioD of
blockade made by another state.

Ht. Frellngbn; •qn, Sec. of State, to Hr. LkogsUm, Doc IS, 1S83. U8S. Inat.,
Hsytl.

"This Government, following the received tenets of international
law, doM not admit that a decree of a sovereign Oovernmenc closing
certain national porte in the possession of foreign enemies or of inanr-
gents has any international eflbct, unless sustained by a blockading
fbroe saGQcient to practically close sach ports.

'< Mr. Lawrence thos states the role drawn from the positions taken
by the administratidns of Presidents Jefferson and Madison during the
struggles with France and England, which grew out of the attempt to
claim the right of closure — as equivalent to blockade — withoat effective
action to that end : ' Nor does the law of blockade differ in civil war
from what it is in foreign war. Trade between foreigners and a port in
possession of one of the parties to the contest caonot be prevented by
a municipal interdict of the other. For this, on principle, the most
obvious reason exists. The waters adjacent to the coast of a country
u« deemed within its jurisdictional limits ouly because they can. be
commanded from the shore. It thence follows that whenever the do-
minion over the land is lost, by its passing under the control of another
power, whether in foreign war or civil war, the sovereignty over th»
waters capable of being controlled from the land likewise ceases."
(Lawrence's note on Wheaton, part ii, cfa. iv, $ 5 (2d annotated ed.), 846.3

«The sitaation which the present decree assumes to create is analo-
gous to that caased by the action of the Govenment of Xew Granada
in 1861. The Granadian cbarg^ d'afEaires, SeQor Rafael Pombo, oi
the 31st of March of that year, notified Mr. Seward that certain porti^
among them Bio Hacha, Santa Marta, Oartagena, Sabanilla, anti Zl
pote, all on the Caribbean coast, had been declared to be closed to col
merce whether of export or of import. Tliere is this difference, hq
ever, that the Qranadian Government then anuonnced that war vesif
of the Con federation were to cruise about the ports closed to commtf
for the purpose of seizing vessels which should be found violating.'
closure which bad been decreed. It appears from Mr. 3eward's nol
acknowledgment to SeSor Pombo, dated April 9, I8C1, that thiji
nouncement then made was interpreted as a declaration that eel'
named ports were 'in a state of blockade which should be'rentf
effective by national vessels, and of which due public notice had:
given.'

" While the Government of the United States, in 1861, thus coij
the doctrine it hod consistently maintained from the earliest ^
the Republic, that non-possessed ports might be effectually closf
maritime blockade, the British Government then controverted tC
of Vew Granada to resort to such a remedy. Answering an inf
376

CHAP. XVinJ MUST BE EFFECTIVE. [§ 361.

the House of Commons, Jane 27, 1861, Lord John Eassell, the secre-
tary of state for foreign affairs, said: 'The Government of New Gra-
nada has annonnced hot a blockade, but that certain ports of 'New
Granada are to be closed. The opinion of Her Mc^esty's Government,
after taking legal advice, is that it is perfectly competent to the Gov-
ernment of a country in a state of tranquillity to say which ports shall be
open to trade and which shall be closed ; but in the event of insurrec-
tion or civil war in that country, it is not competent for its Government
to close the ports that are de faeto in the hands of the insurgents, as
that would be a violation of international law with regard to blockades.'
His lordship added that orders had been given to the British naval
commanders in the Caribbean Sea < not to recognize the closing of these
ports.' (See Parliamentary Debates, cited in Lawrence's Wheaton (2d
annotated ed.) notes, 46-48.)

^'Wben in 1861 the civil war in the United States broke out, this
Government maintained the position that the municipal closure of do-
megtio porta in the hands of the Confederate forces was a legitimate
incident toward the maintenance of an effective blockade by sea. This
was opposed by the British Government, and in the correspondence
which then took place Lord John Russell repeatedly announced to Mr.
Adams the same rule as he had previously announced with regard to
theGianadian decree; an4 he finally appealed to his answer in the
New Granada case for the purpose of showing that it was intended to
make the rule universal. (TJ. 8. Dip. Corr., 1861, 90, 96, 117, 120, 177.)
The British ministry ultimately went to the extreme of declaring that
they woald consider such a municipal enactment (that of the closure of
Q0Q*po88essed ports) as null and void, and that * they would not submit
^Qteasares taken on the high seas in pursuance of such decree.' (Par-
Hamentary Papers, 1862, North America, No. 1, 72; Lord Lyons to
^^ J. Russell, August 12, 1861.)

^h a speech of Mr. Cobden, made on October 25, 1862 (cited in Law-
knee's Wheaton, 2d annotated ed., 823, note), he said: <It has been dis-
tinctly intimated to America that we do not recognize their municipal
H^t in the matter; and if they were to proclaim, for example, that
^^rleston was not to be traded with, and did not keep a sufficient force
^^ ships there, we should go on trading with the town just as if noth-
^^S had occurred. It is only upon condition that the blockade shall
^ ^ectively maintained as between belligerents that the European
i I^^erg re<K)gnize it at all.

[ "A recent authority. Professor Perels, judge of the imperial admiralty
^ ^Qrt in Berlin, in a treatise on international maritime law, published
^^ 1882, writes thus : * The embargo of domestic i)orts, no matter by
Hat measures or for what purpose it takes place, as it has not the
^^^^ter of a real blockade, cannot have the same consequences. It
^^ indeed without question be maintained, in case of need, by means
^ the employment of force against such neutral ships as do not ohoo&e

371

§361.] BLOCKADE. [CHAP. XVIH

to acqniesce in it; likewise a seizure of snch neutral ships as do nol
find themselves prepared to submit to the measures of embargo masi
be considered as allowable, and it must be held in the case of activ<
resistance that even the destruction of such ships is allowable in accord
ance with the rules of war; but it is inadmissible, because not groundei
on international law, to condemn as good prizes on account of the!
cargoes, neutral ships resisting such embargo.' {Op. citj § 52.) Anc
it is conceded by this eminent authority that there can be, withon
blockade, no closure of a port not in possession of the sovereign issu
ing the decree.

^'The legislation by the Congress of the United States in 1861 rela
tive to the closing of the ports of the South held by the Gonfederat
armies was reaUy conditioned on a blockade. As Mr. Seward wrote t
Mr. Adams, July 21, 1861, < the law only authorizes the President t
close the ports in his discretion, according as he shall regard exigencle
now existing or hereafter to arise. • • • The passage of the laiw
taken in connection with attendant circumstances, does not necessaril;
indicate a legislative conviction that the ports ought to be dosed, bu
only shows the purpose of Congress that the dosing of the ports, if it i
now or shall become necessary, shall not fail for want of power explicit!;
conferred by law.' (XJ. S. Dip. Oorr., 1861, 120.) Under the authority &
conferred certain ports were closed by formal proclamation of blockad
which it thereupon became incumbent upon the Government of th
United States to maintain e£fectively according to the prescriptions m
international maritime law.

^< After careful examination of the authorities and precedents bearic
upon this important question, I am bound to conclude, as general prii
ciple, that a decree by a sovereign power closing to neutral commer^
ports held by its enemies, whether foreign or domestic, can have x
international validity and no extraterritorial effect in the direction ^
imposing any obligation upon the Governments of neutral powers ^
recognize it or to contribute toward its enforcement by any domest:
action on their part. Such a degree may indeed be necessary as a isx^
nicipal enactment of the state which proclaims it, in order to clothe ti
executive with authority to proceed to the institution of a formal skX\
effective blockade, but when that purpose is attained its power is e:
hausted. If the sovereign decreeing such closure have a naval ton
sufficient to maintain a blockade, and if he duly proclaim such a bloc!
ade, then he may seize, and subject to the adjudication of a prize cotii'
vessels which may attempt to run the blockade. If he lay an embar^T*
then vessels attempting to evade such embargo may be forcibly repell^
by him if he be in possession of the port so closed. But his decree olo
ing ports which are held adversely to him is, by itself, entitled ta ^
international respect. Were it otherwise, the de facto and titular
ereigns of any determinate country or region might between them
elude all merchant ships whatever from their ports, and in this

378

CHAP, XVni.] MUST BE EPPECTIVE. [$861.

not only rain those engaged in trade with snch stateSi bnt oaase much
diBoomfort to the nations of the world by the exclosion of necessary
piodacta fonnd in no other market.

^'The decree of closnre of certain named ports of Golombia contains
no intimation of an ulterior purpose to resort to a proclaimed and effect-
ive blockade. It may^ therefore, be premature to treat your announce-
ment as importing such ulterior measure»; but it gives me pleasure to
declare that the Government of the United States will recognize any
effective blockade instituted by the United States of Golombia with
respect to its domestic ports not actually subject to its authority. This
Oovemment will also submit to the forcible repulsion of vessels of the
United States by any embargo which Golombia may lay ui)on ports of
which it has possession, when it has power to effect such repulsion.
But the Oovemment of the United States must regard as utterly nuga-
toiy proclamations closing ports which the United States of Golombia
do not possess under cover of a naval force which is not even pretended
to be competent to constitute a blockade.

** As early as April 24, 1861, when Mr. Lincoln's administration had
only been in office six weeks, but when it was already apparent that
the secession movement then begun would speedily have possession of
inost of the ports of the Southern States, Mr. Seward addressed a cir-
<^r to the ministers of the United States in Europe, in which he
declared the adhesion of the United States Government to the rule that
'blockades, in order to be binding, must be effective ; that is to say,
ii^ftiQtained by forces sufficient really to prevent access to the coast of
tte enemy.' (U. S. Dip. Corr., 1861, 34.)

^^When President Lincoln proclaimed, as he did on the inception of
the civil war, a blockade of the Southern coast, the proclamation was
Mowed by an announcement to France and to England that the block-
^6 woald be effective in the above sense ; and it is important to
observe that, enormous as were the profits to be gained by block-
^de-rnnniDg, and doubtfnl as was at least the friendliness of certain
^nropean courts towards the United States, not one of the maritime
powers of Europe complained that the blockade was not effective.

^'Congress, it is true, adopted a few weeks later a municipal statute,
^ bereinbefore stated, authorizing the President, at his discretion, to
^)ose the Southern ports ; but as to this measure the following obser-
vations are to be made:

'^ (a) The closure was to be a domestic act, incidental to the blockade,
tbe pennanency of which as a general measure during the civil war the
^resident had already announced to foreign sovereigns.

^^ (k) It was to be effected in part by land forces.

^H^) Its institution was conditional upon the discretion of the Presi-

^*nt, ^iiicjj discretion was never exercised.
"It is as thus qualified and explained that Mr. Seward refers, in his

J^^^^^^^ndence with Mr. Adams and Lord Lyons, to the stObtut/^ m
379

§ 361.] BLOCKADE. [CHAP. XVIIL

qaestion^ bat it is impossible not to see, in Mr. Seward's references, a la-
tent appeal of great force against the action of those European powers
which, at the beginning of this centnry, did not hesitate to convulse
and devastate the world by decrees and orders in council closing x>orts
they did not possess. They did this in the face of vehement and almost
supplicatory remonstrances from the United States, and forced this
Government, then young in the family of sovereignties, and naturally
desirous of peace with all, most reluctantly and at great cost of blood
and treasure to undertake, as at last the sole maritime contestant, wars
against Great Britain and France to maintain the freedom of the seas
and the invalidity of paper blockades."

Mr. Bayard, See. of State, to Mr. Becerra, Apr. 9, 1885. MSS. Notes, Colombia;
For. Rel., 1885.

Fauchille (Blocus Maritime, 155), while pushing in this, as in other
respects, his vindication of neutral rights to their extreme limit, holds
that the United States accept the position of Sir W. Scott that a blockade
is not broken by an accidental dispersion of the blockading squadron
through stress of weather. <^In 1800, tbe United States held that a
blockade was maintained notwithstanding a temporary dispersion of the
blockaders by storm (Mr. Marshall to Mr. King, September 20, 1800), and
the same view was enforced by Mr. Mason in his instructions to the naval
commanders of December 24, 1846." He admits, also, that the same
position is taken by Phillimore, iii, § 294; 1 Kent, 365; and other high
authorities. But he proceeds to cite the opinion of Ortolan (ii, 314,
and also Deane on Blockade, 54) to the effect that whi^e a blockade is
not vacated permanently'by such a dispersion, it is suspended while the
dispersion continues, so that vessels entering during such an interval
are not liable to be seized for blockade-running. He proceeds to argue
that the preponderance of reason and of authority is with the position
that when a blockading force is dispersed by stress of weather or by
other causes, the blockade is broken, and cannot be renewed except by
notice, as if it were a new blockade.

A blockade may be made effectual by batteries ashore as well as by
ships afloat. In the case of an inland fort, the most effective blockade
would be maintained by batteries commanding the river or inlet by^ which
it may be approached, supported by a naval force sufficient to warn o:
innocent and capture offending vessels attempting to enter.

The Circassian, 2 Wall., 135.

The fact that the master »nd mate saw no blockading ships off th<

port where their vessel was loaded, and from which she sailed, is dc
enough to show tbat a blockade, once established and notified, had beei
discontinued.

The Baigorry, ihid,, 474.

A blockade, once regularly proclaimed and established, will not
held to be ineffective by continual entries in the log-book, supports ^
by testimony of officers of the vessel seized, that, the weather beim ^
clear, no blockading vessels were to be seen off the port from which tl
vessel sailed.

The Andromeda, ibid., 481.
380

CHAP. XVIII.] OBSl RUCTIONS OP CHANNEL. [§ 361a.

Where, in time of war, a foreign vessel, availing herself of a procla-
mation of the President of May 12, 1862, entered the port ot New Orleans,
tbe blockade of which was not removed, but only relaxed in the inter-
ests of commerce, she thereby assented to the conditions imposed by
such proclamation that she should not take out goods contraband of
^ar, nor depart until cleared by the collector of customs according to
law.

U. 8. V. Diekelman, 92 U. S., 520.

(4) Obstsuctions mat bb temporarily placed in channel of access.

§ 361a.

The obstructing by a blockading squadron of the blockaded port,
leaving the main channel open, is not inconsistent with international

law.

Mr. Seward, Seo. of 8tat«, to Mr. Dayton, Feb. 19, 186^. MSS. Inst., France.

Lord Lyons's protest against the use of stone in the blockading of
Charleston, is limited to the element of permanency, no objections be-
ing made by him to obstructions which could be removed after the
termiaatiou of hostilities. ( Archiv Dip., 1862, ii, 80.) Fauchillc (Blocus
Maritime, 144 Jf.) dissents, not very forcibly, from this view, although
it was acquiesced in at the time by the French Government.

^'Oq February 14, 18C2, in the House of Lords, Lord Stanhope called
tbe attention of JjotA John Bussell to the report that a second squad-
Jon of ships, laden with stone, was to be sunk by the Government of
tbe United States in the Maffltt's Channel of Charleston Harbor. The
Binkiug of large iships, laden with stone, on banks of mud at the en-
trance of a harbor, could only end in the permanent destruction of the
^Die, and such was not justified by the laws of war. It was not an
^t of man against man, but against the bounty of Providence, which
bad voQchsafi^ harbors for the advantage and intercourse of one peo-
P^^ with another. On this ground we (the British) were well entitled
^ protest against the act. Lord John Kussell approved of the protest,
'iid considered the destruction of commercial harbors a most barbarous
^ He stated that the French Government took the same view, and
^re (lecidcHl to remonistrate with the United States Government.

**0n February 28, Lord John Russell informed the House that he
^^^ received a dispatch from Lord Lyons, to the effect that Mr. Sew-
^ stated there had not been a complete filling up of Charleston Har-
^h and that no more stone ships would be sunk Uiere.''

SHoUeck's Int. Law, (Baker's ed.)» 23.

^^ I regret that a report which has been communicated to the Be-
P^ment obliges me to request that you will make a strong represen-
tation in the premises to the Peruvian Government, should you find on
^^uiry that the report is well founded. This report is that the Peru-
^ans have made use, during the present war with Chili, of * boats con-
taining explosive materials,' which have 4n some instances been sent
^ft (m tke cAofUW of their being fallen in with by some of the Chilian

381

§ 361a.] BLOCKADE. [CHAP. XYni.

blockading sqaadrone.' How far the case of the launch to which yoa
refer in yoor No. 183, which was loaded with concealed dynamite, comes
within the description of cases mentioned, the Department has not the
requisite data to determine.

^^ It is sufficiently obvious that this practice must be fraught with
danger to neutral vessels entitled to protection under the law of nations,
and that in case American vessels are injured thereby, this Government
can do no less than hold the Government of Peru responsible for any
damage which may be thus occasioned.

<< There is no disposition on the part of this Government to act in any
wise nor in any spirit which may be construed as unnecessarily critical
of the methods whereby Peru seeks to protect her life or territory
against any enemy whatsoever ; but it will appear, I think, to the high
sense of propriety which has in times past distinguished the councils
of the Peruvian (Government, and which without doubt still abides
therein, that in case it is ascertained that means and ways so dangerous
to neutrals as those adverted to have been for any reason suffered to
be adopted by her forces, or any part of them, they should be at once
checked, not only for the benefit of Peru, but in the interest of a wise
and chivalrous warfare, which should constantly afford to neutral pow-
ers the highest possible consideration."

Mr. Eyarto, Seo. of State, to Mr. Chriatiancy, Jan. 25, 1861. MSS. Inst., Pern.
Doo. with Preaident'a mesBage of Jan. 26, 1882. See to same effect Mr
EvartB to Mr. Shishkio, Jane 12, 1877. MSS. Notes, Rossia ; quoted $uprm
$361.

^^On the 10th of January 1 was informed by the British minister, SI
Harry Parkes, and the Gharman charg6 d'affaires, Oount Tattenbacki
that dispatches had been received from their consuls at Canton sayia
that the Chinese authorities were preparing to obstruct the water a^
preaches to Canton, and that the effect of these obstructions would ts
to imperil, if not to prevent, navigation. The German consul reports
that Whampoa would *be totally blocked.'

'< I telegraphed Mr. Consul Seymour for information, and his reply^
inclose. Mr. Seymour, as you will observe, said that there would "■
^serious obstructions without equivalent benefits.'

*'Two questions arose which in the opinion of the legation require
immediate attention.

<<The first was that by the terms of the treaty of Tien-Tsin, 1858, ccm
eluded between China and the United States, in Article XXYI, IJnit>«
States vessels, in the event of war between China and other pow^a
were to have free access and egress in the open ports. ^ It is fhrtla
agreed,' says the treaty, ^ that in case, at any time hereafter, China skm ^
be at war with any foreign nation whatever, and should for that ca«3i
exclude such nation from entering her ports, still the vessels of '^
United States shall not the less continue to pursue their commerce
freedom and security, and to transport goods to and from the port^
the belligerent powers,' etc.

^'The second was that the Chinese authorities, in a time of peace, w^^
performing a belligerent act directed against the commerce of friexmd
powers, au act which if permitted at Canton would stand as a pr«^<^
dent for closing every port in China.

382

CHAP. XVin.] 0BSTBUCTI0N8 OP CHANNEL. [§ 361a.

*<I was not disposed to lay much stress npon the first of tUese propo-
Bitioiis, or even to make it a matter of serious debate with the Govern-
ment, without asking for your special instructions. To be sure, the
stipulations of the treaty are plain. It was made, however, in 185S.
Since then the methods of offensive and defensive warfare have been
revolutionized. The United States, during the rebellion, saw fit to ob-
Btmct the channels in Gharleston Harbor by sinking ships laden with
stone, to secure an effective blockade. Germany, during her latest war
with France, protected her Baltic ports with torpedoes. I should have
felt some embarrassment in seeking to persuade the yam6n that what
Germany and the United States regarded as honorable warfare could
not be permitted to them.

^^At all events, I should have deemed it wise, before making any
representation to the yamdn, to have asked the Department for farther
instructions as to how far my Government was disposed to assert our
rights under the article I have quoted.

^^As to the second proposition, I could see no doubt as to my imme-
diate duty. The situation was this : The viceroy of two provinces, a
local official, upon his own responsibility, without asking the orders of
his Government and without any communication to the foreign powers
of such a contemplated act, proposed to do what could only be regarded
as an extreme and supreme measure of war, namely, to close a port open
to us by the treaties. This was toA)e done when China was at peace,
and before any declaration of war, or even an intention so to declare,
had been published. If the obstruction of Canton, under these circum-
stances, was permitted, without a prompt and decisive protest, there
^oold be no reason why this or a subsequent Government, the Canton
Ticeroy, or the ruler of other provinces, should not obstruct and close
every port in China. And while it might be said that motives of self-
interest and the natural desire of the Chinese to profit out of foreign
commerce would render such apprehensions improbable, yet one can
neTer cease to remember that in China there is a powerful and what
some observers regard a dominant anti-foreign sentiment, which would
regard such a measure as excluding all foreigners from the Empire as
^ act of the highest patriotism.

^'Tbe question was one which under ordinary circumstances I should
^ve submitted to the diplomatic body. But on account of the rela-
^ons between China and France, I believed, on reflection, that separate
action, and especially in my own capacity as the American representa-
^^e, woold be the most effective in securing the ends of peace. With
^ view I requested an interview with the ministers of the yam^n.
^e legalt was a long conversation, a report of which is inclosed.

.*^lt would be superfluous to repeat what is written with so much de-
^»iHn this report. • • •

^^Although we could not induce the yamdn to give us a formal with-
^rawal of their policy, nor to make any promise that what had been
^OQe at Canton might not be repeated at Shanghai and Tien-Tsin, the
Pfaetical effect of our joint action was to arrest the obstructions pro-
^^^ in Canton, and to show the Government that we could not permit
h!^ h^ been attempted as a precedent. I did not feel myself at lib-
^% to go beyond an earnest and at the same time a friendly protest.

^Ihe point at issue was so important, and the possible action of the
yj^fen so uncertain, that I felt bound to submit it without delay to the
"^Wment. This was also done by the British legation. The dispatch
^Sir Harry Parkes to Lord Granville, and his lordship's answer, will
^ found as inclosures.

S8l^

§ 361a.] BLOCKADE. ' [CHAP. XVIH.

^< I also requested Admiral Davis, now at Shanghai, to have some
skilled officer examine the nature of the proposed obstruction. Such a
report would have a technical value, as that of a professional expert,
apart from the judgment of the consular gentlemen upon whose informa-
tion we act.

'^The correspondence is herewith submitted to the Department. I
am persuaded that you will agree with me that, considering, on the one
hand, our rights under the treaties, and, on the other, the practical em-
barrassments which confronted Ohina, wishing under no circumstances
to appear harsh and stern, the position taken by the yam^n made our
duty clear ; that this duty was to protest against a grave violation of
treaties and of international law. I endeavored to do so in a way that
would show the minister that no nation, under existing fomrs of civil-
ized society, could venture upon deeds of this nature without doing her-
self in the end a grave injury ; that treaties and international law were
made for the common welfare of mankind, and that in their sanctity
China had no small share.

" To have overlooked the action of the Canton viceroy, to have per-
mitted a precedent which at any time, under the reactionary influences
possible in China, would have fatally wounded every foreign interest,
would, in my opinion, have been a serious neglect of duty. I trust that
the action of the legation will meet with your approval."

Mr. Tonng, ministor to China, to Mr. FrelinghayseD, Feb. 11, 1884. MSS. Dia-
patches Cbin^k ; For. Rel., 1884.

<' Your No. 350, of the 11th of February last, concerning the threat-
ened obstruction of the Canton Eiver by the viceroy of the province, as
a defensive war measure, has been received and read with much atten-
tion.

<' The report of your conference with the yamdn on the 14th of Jan-
uary presents very clearly the embarrassments which attend any at-
tempt to make clear to the Chinese Government the relations of the
treaty powers to each other in regard to this question.

^^ In your interview with the yamdn you closely anticipated the tenor
of my telegraphic instruction of the 22d of January. Had that telegram
been before you it might possibly have famished you with a reply to an
argument frequently put forth by the ministers of the yamto, that the
neutral powers should show their friendship for China by preventing
France from attacking China without proper previous notice of inten-
tion to do so. This is, as you will have seen, almost exactly the ground
taken by the United States.

" The real issue seems to have been very succinctly put by Chang-ta-
j6n in the interview of the following day with Sir Harry Parkes. * If,'
said he, ' China could be certain that France would be guided l>y the
laws of war in her future action, and an authoritative assurance could
be obtained from any quarter that France would not attack (the open
ports) without due notice, Chang-ta-j6n would promise, on his own re-
sponsibility, that the obstructions at Canton should be removed.'

(( The gravity of the question seems to have been removed in a great
measure by the assurance given by the yam6n that a channel of over

381

CHAP. XVIII.] OBSTRUCTIONS OF CHANNEL. [§ 361o.

100 feet in width would be left in both channels for the convenience of
8teamers and sailing vessels, an assurance which Chang-tajen seems
afterwards to have still further extended to 150 feet, as appears from
the telegram from the British consul at Canton to Sir Harry Parkes of
January 26.

^^Even, however, under this favorable modification, the obstruction
to the channel at Canton and Whampoa can only be tolerated as a tem-
porary measure, to be removed as soon as the special occasion therefor
shall have passed, and under no circumstances to be admitted as a pre-
cedent for setting obstacles to open navigation at the treaty ports in
time of peace, under pretext of being intended for ultimate strategic
defense in the contingency of future war.''

Mr. FrelinghDyBen, See. of State, to Mr. Young, Apr. 18, 1884 ; ibid,

" Your No. 141 is before me, and brings to the Department, with much
clearness, a question of great interest. It is unquestionable that a bel-
ligerent may, during war, place obstructions in the channel of a bellig-
erent port, for the purpose of excluding vessels of the other belligerent
which seek the port either as hostile cruisers or as blockade-runners.
This was done by the Dutch when attacked by Spain, in the time of
Philip 11; by England when attacked by the Dutch, in the time of
Charles II ; by the United States when attacked by Great Britain, in
*he Revolutionary War and in the war of 1S12; by the United Siatesdur-
ing the late civil war; by Russia at the siege of Sebastopol ; and by Ger-
many during theFrapcoGerman war of 1870. But while such is the law,
it is equally settled by the law of nations that when war ceases, such ob-
structions, when impeding navigation in channels in which great ships
aw accustomed to pass, must be removed by the. territorial authorities.
Such is the rule, apart from treaty; and it was implicitly admitted by
^r. Seward, when, in replying to the remonstrances by the British Gov-
emmeut on the placing by the blockading authorities of obstructions in
the harbor of Charleston, he stated that these obstructions were placed
there merely temporarily. Were there any doubt about this question,
which I maintain there is not, it would be settled by the provisions of
^°f treaties with China, which virtually make Canton a free port, to
which our merchant ships are entitled to have free access in time of
P^^. You are therefore instructed to make use of \he best efforts in
your power to induce the Chinese Government to remove the obstruc-
tion in the Canton River, which, as you 8tat«, operate to close the port
of Canton to the merchant vessels of the United States. In sending to
yt^ihm instruction, I affirm the instructions of Mr. Frelinghuysen to
Mr. Young, No. 2G7, dated April 18, 1884, printed in the Foreign Rela-
tions of that year."

Mr. Bayard, Bee. of State, to Mr. Denby, July 28, 1886. MSS. Inst., China.
8. Mis. 1C2— VOL. Ill 25 385

§ 362.] BLOCKADE. [CHAP. XVIi

n. ENFORCEMENT OF.

(1) YXSSELS SEEKING EVASION OF, MAT BE SEIZED.

§362.

The rale ^' wbich subjects to capture vessels arriving at a port in t1
interval between a removal and a return of the blockading forces," h
deviation from international law.

Mr. MadifiOD, Sec. of State, report of Jan.25y 1806. MSS. Dept. of State.

For correspondence with Brazilian Government in 1827, respectii
the exclusion of neutral ships-of-war from blockaded ports, see Br
and For. St. Pap., 1827-^28, vol. 15, 1118. In Commodore Biddk
letter of November 11, 1827, to the Brazilian admiral, he states " th
blockades have never been deemed to extend to public ships. Ore
Britain almost perpetually at war, and numerically superior at sea
any other nation, never for a moment pretended that neutral 8hips-<
war could be affected by blockades. During several years of the wi
in Europe, the Government of the United States maintained its dipl
matic intercourse with France exclusively by means of its public shi]
entering the blockaded ports. In 1811, in the T7. S. S. Hornet, I m
self went into Cherbourg, then blockaded by a British squadron ; wi
boarded as I went in by the blockading squadron, but merely for t1
purpose of ascertaining our national character." The Brazilian adn
ral in reply stated that by a recent decision of the British Cabinet, ^^ ve
sels-of-war could not enter blockaded ports, and such has continued i
be the practice of the English."

It is not inconsistent with the principles of international law for
neutral sovereign to send an armed cruiser to watch a blockaded coas
so as to see no injustice is done to his own merchant vessels, and ths
they may be prevented from any irregular proceedings.

Mr. Van Baren, Seo. of State, to Mr. Azambigo, Mar. 8, 1831. MSS. Note
For. Leg.

" On this point the law of nations cannot admit of doubt. Its prii
ciples are announced more clearly than I could express them by S
William Scott, in delivering the opinion of the court in the case <
the Yrouw Judith (1 Bobinson's Admiralty Eeports, 151), that em
nent publicist says : ^ Now, with respect to the matter of blockade,
must observe that a blockade is just as much violated by a vessel pas
ing outwards as inwards. A blockade is a sort of circumvallation roun
a place, by which all foreign connection and correspondence is, as fi
as human force can effect it, to be entirely cut off. It is intended to sai
I>end the entire commerce of that place ; and a neutral is no more 2
liberty to assist the traffic of exportation than of importation. The ul
most that can be allowed to a neutral vessel is that, having abead.
taken on board a cargo before the blockade begins, she may be at lib
erty to retire with it. But it must be considered as a rule which tbii
court means to apply, that a neutral ship departing, can only take a^a;

386

CHiP. XVIII.] / ENFORCEMENT OF. [§ 362.

a cargo bona fide purchased and delivered before the commencement of
the blockade ; if she afterwards takes on board a cargo, it is a iraudii-
leut act, and a violation of the blockade.'

** But the very question arising in the case of the Jeune Felly has
been jadicially decided, after full argument, by the United States dis-
trict court for Louisiana, a prize court of competent jurisdiction, and I
now have the honor to transmit you a copy of the opinion of the learned -
judge, extracted from the New Orleans Picayune, of the 14th Decem-
ber, 1847."

Mr. Bacbaoan, Sec. of State, to Mr. Poassin, Jan. 17, 1849. MSS. Notes, France.

See Mr. Marcy, Sec. of State, to Mr. Buchanan, April 13, 1854. MSS. Inst., Or.
Brit. House £x. Doc. 103, 33d Cong., 1st sess. ; quoted aupraf $ 361.

The carrying letters or passengers to blockaded ports by neutral war
vessels, entering by courtesy therein, is an infraction of neutrality.

Mr. Seward, Sec. of State, to Lord Lyons, Oct. 4, 1861. MSS. Notes, Or. Brit.

Same to same, Oct. 14, 1861 ; ihid,
Afl to recapture of blockade-runner Emily St. Pierre, see Brit, and For. St. Pap.,

1864 -'65, vol. 55.

•

^'Tbe fact of clearing out for a blockaded port is in itself innocent,
unless it be accompanied with knowledge of the blockade. The clear-
ance, therefore^ is not considered as the offence; the persisting in the
intention to enter that port, after warning by the blockading, is the
gronnd of the sentence. • • •

*'Vattel, b. 3, s. 117, says, *A11 commerce with a besieged town is
entirely prohibited. If I lay siege to a place, or even simply blockade
iti I have a right to hinder any one from entering, and to treat as an
-enemy whoever attempts to enter the place, or carry anything to the
Sieged, without my leave.' The right to treat the vessel as an enemy
is declared, by Vattel, to be founded on the attempt to enter, and eer-
ily this attempt must be made by a person knowing the facf

Hanhall. C. J. ; Fitzsimmons v, Newport Ins. Co., 4 Cranch, 198.

A vessel sailing ignorantly for a blockaded port is not liable to con-
^emnatiou under the law of nations.

Teston v. Fry, 5 Crancb, 335.

^0 neutral can, after knowledge of a blockade, lawfully enter or
attempt to enter the blockaded port; and to do so would be a violation
^f neutral character, which, according to established usages, would sub-
ject the property engaged therein to the penalty of confiscation.

MoCall V. Marine Ins. Co., 8 Cranch, 59.

A vessel sailing from a neutral port with intent to violate a blockade
Pliable to capture and condemnation as prize from the time of sailing,
^"ough 5iie intend to call at another neutral port, not reached at time
01 capture^ before proceeding to her ulterior destination.

Th« Circassian, 2 WaU., 135.

387

§ 362.] BLOCKADE. [CHAP. :

Intent to ran a blockade may be inferred in part from delay (
vessel to sail after being completely laden, and from changing the
coarse in order to escape a sbip-of-war cruising for blockade-mi
A vessel and cargo, tbongh owned by nentrals, may be condemc
enemy property, becaase of the vessel being engaged in enemy 1
and becaase of an attempt to violate a blockade and to elude visit
and search.

The Baigorry, ihid., 474.

If a vessel is found without a proper license near a blockading s
ron, under circumstances indicating intent to run the blockade, a
such a position that, if not prevented, she might pass the block
force, she cannot thu&jfla^antefacto^ set up as an excuse that sh
seeking the squadron with a view of getting an authority to proce
her desired voyage.

the Josephine, 3 Wall., 83.

A cargo taken from a port in, violation of a blockade, with the i
to transship it at an intermediate port for its port of ultimate de
tion, remains liable to capture and condemnation after the tram
meut.

The Thompson, ibid., 155.

Presumption of an intent to run a blockade by a vessel bound
rently to a lawful port may be inferred from a combination of ci:
stances.

The Cornelius, ibid,, 214.

Destination alone justifies seizure aud condemnation of ship and
in voyage to ports under blockade; and such destination ju:
equally seizure of contraband in voyage to ports not under bloc!
but in the latter case the ship, and cargo, not contraband, an
from seizure, except in cases of fraud or bad faith.

The Bermnda, ibid., 514.

For a criticism of this case see 3 Phill. Int. Law (3d ed.)i 446.

The approach of a vessel to the mouth of a blockaded port f
quiry — the blockade having been generally known — is itself a b
of the blockade, aud subjects both vessel and cargo to condemui

The Cheshire, ibid,, 231.

Where a clearance of a vessel expressed a neutral port to be he
port of destination, but the facts showed that her primary purpo8(
to get cargoes into and out of a port under blockade, the outwanl c
if obtained, to go to the neutral port named as the one cleared fo
fact that the vessel's letter of instructions directed the master to i-
the blockaded port and, if he should find the blockade still in for
get the officer in command of the blockading ship to indorse c
vessel's register that she hiul been warned off (in accordance with

388

•CHAP. XVIII.] ENFORCEMENT OF. [§ 362.

the owners of the vessel asserted to be their nnderstanding of neutral
rights under the President's proclamation of the 19th of April, 1861).
and then to go to the port for which the clearance called, will not save
the vessel from condemnation as prize, she having been captured close
by the blockaded port, standing in for it, and without ever having made
•an inqoiry anywhere whether the port was blockaded or not.

The Admiral, ibid., S03.

Mere sailing for a blockaded port is not an offense, but where the
Tessel has knowledge of the blockade, and sails with the intention of
violating it, she is liable to capture. A vessel setting sail from England
OD the 9th of September, 18G1, with actual knowledge of a proclamation
^hich the President of the United States made on the 10th of the April
preceding, blockading certain Southern ports, had no right, under an
-allegation of a purpose to see if the blockade existed, to sail to one of
the ports actually blockaded.
mi

Where the papers of a ship sailing under a charter-party are all gen-
nine and regular, and show a voyage between neutral ports, where there
has been no concealment or spoliation of papers ; where the stipulations
■of the charter-party in favor of the owners are apparently in good faith,
^nd the owners are neutrals, have no interest in the cargo, and have
not previously in any way violated neutral obligations, and there is no
«nflBcient j)roof that they have any knowledge of the unlawful destina-
tion of the cargo — ^iu such case the vessel will not be condemned, because
the nentral port to which it is sailing has been constantly and noto-
rioQsly used as a port of call and transshipment by persons engaged in
systematic violation of blockade and in the conveyance of contrabi^nd
^f war, and was meant by the owners of the cargo to be so used on this
^^<^ioa. But the mere fact that the master declared himself ignorant
^ to what a part of his cargo, of which invoices were not on board
(having been sent by mail to the port of destination), consisted, such
part having been contraband ; and also declared himself Ignorant of the
'Caose of capture, when his mate, boatswain, and steward all testified
t^tthey understood it to be the vessel's having contraband on board,
w^ held not sufficient of itself to infer guilt to the owners of the vessel,
^bo were in no way compromised with the cargo.

The Springbok^ 5 Wall., 1.

A neutral vessel sailing under a charter-party from one neutral port
^0 another was captured and libeled for intent to violate a blockade.
^^port to which she was sailing, though neutral, had been constantly
^^ notoriously used as a port of call and transshipment by i)er8ons
^ ^^gaged in systematic violation of certain blockaded ports and in the
<5onveyance of contraband of war. Her cargo consisted of 2,007 pack-
**8ea, of which the contents of 619 packages were disclosed by tlne^bvW^

389

§ 362.] BLOCKADE. [CHA]

of lading, the contents of the remaining 1,388 not being discloset
the bills of lading and the manifest made the cargo deliverable
and the master was directed by his letter of instructions t
himself on arrival at his destination to H., who ^' woald give hii
as to the delivery of his cargo.'' A certain fraction of that p
the cargo whose contents were undisclosed was specially fitter
enemy's military use, and a larger part capable of being adapt
On invoking the proofs in two other cases it was found that the
of the cargo in question and the charterer of the vessel were tin
of certain vessels which, while sailing ostensibly for neutral pc
been captured and shown to have been engaged in blockade-r
and that many packages on one of these vessels, being numb(
broken series of numbers, had many of their complemental nun
the vessel now under adjudication. No application was made
further proof in explanation of these facts, and the claim to tl
was not sworn to by either of the persons owning it and res
England, but by an agent at New York, on ^' information and
No guilty intent, or complicity in any, on the part of the ownei
vessel having been shown, she was restored, but the cargo \
demned for intent to run the blockade.

Ibid.

A vessel destined for a neutral port with no ulterior destim
herself, and none by sea for her cargo, to a blockaded place,
no blockade.

The Poterhoff, 5 Wall.. 28.

As to the ease, see 3 Phill. Int. Law (3 ed.), 395/. ; 479/1

A neutral, professing to be engaged in trade with a neutral p
ated so near to a blockaded port as to warrant close observatioi
blockading squadron, must keep his vessel, while dischargin
ceiving cargo, so clearly on the neutral side of the blockading 1
repel, so far as position can repel, all imputation of intent to b
blockade. And neglect of that duty may well justify capt
sending in for adjudication ; though it might not justify a coi
tion in the absence of evidence that the neglect was willful.

The Dashing Wave, 5 Wall., 170.

Where a party, whose national character does not appear, g
money to a neutral house, to be shipped with money of that be
in their name, and an attorney in fact, on capture of the mc
libel of it as prize, states that such neutral house are the owners
and that "no other persons are interested therein," the capt
sending in will be justified ; though in the absence of proof of an
character in the party shipping his money with the neutral'
demnation may not ensue. Where a vessel has been guilty of <
nesa and a portion of her cargo is of a suspicious nature, the c€

390

CHAP. XVIII.] ENFORCEMENT OP. [§ 362.

expenses of tbe capture may be ratably apportioned between the vessel
and the suspicions portion of the cargo, though both are restored.

A neutral vessel, completely laden with a neutral cargo, and at
anchor on th^ neutral side of a river which washed a blockaded coast,
drifted into hostile waters and was captured, while temporarily at
anchor there, on suspicion of intent to break the blockade. It was held
that temporary anchomge in waters occupied by the blockading vessels
did not justify capture in the absence of other grounds.

The Teresita, 5 Wall., 180.

A vessel sailing through blockaded waters was seized on suspicion of
intent to break the blockade. Besides the fact that her manifest bore
date as of a day when only a part of the cargo was laden, her bills of
health and clearance pointed to one port as her port of destination,
while the captain's letter of instructions required him to stop at an-
other, not in a direct line, for instructions. The vessel's bills of health
specified six men and no passengers, there being, in fact, one passen-
^; and the provisional certificate of registry represented as sole
owner one person, and other papers another. It was held that these
cirenmstances justified the seizure.

It further appeared that the vessel's name had been changed, and
that her master had ten months before commanded a blockade- runner.
^ot only was her ownership in doubt, the ostensible ownership being
apparently but a mere cover, but no claim was put in for her, except by
the captain, who put in a claim for the ostensible owners, though with-
out instructions from them and only in his capacity of master. The
^^dence, too, was very strong, that a portion of the cargo was enemy's
property. Under these circumstances condemnation was decreed.

The Jenny, ibid., 1S3.

. Iq proceedings against a ship and cargo as prize of war, the burden
of proving neutral ownership is on the claimants ; and when there is no
Pioofof such ownership, and still more when the weight of evidence is
^ the side of enemy ownership, condemnation will be pronounced.

Daring the civil war a British vessel bound from England to Kassau,
^«w Providence, was captured by an American war steamer, and was
^ndemned as intending to run the blockade of the southern coast of the
doited States; the grounds being that Nassau, though a neutral port,
^inconstantly and notoriously used as a port of call .and transshipment
^y persons engaged in systematic violation of the blockade, and in the
^^veyance of contraband of war; the vessel and cargo were consigned
"^ a house well known to the court, from previous suits, to be so ^tk-
i; the second officer of the vessel and several of the seam^ii^^^-

§ 362.] BLOCKADE. [CHAP. XVU

amined in preparatorio^ testified 8troD[gly that the parpose of the resst
was to break the blockade; and the owner, who was heard, on leaiE
given him to take farther proof touching the nse he intended to mat
of the vessel after arrival at Nassau, the trade or business he intende
she should engage in, and the purpose for which she was going to thi
port, said and produced nothing.

The Pearl, 5 Wall., 574.

A permit to enter or depart from a blockaded port, issued by an of
cor who has no authority to grant it, is invalid, and will not save
vessel from condemnation on the charge of blockade-running.

The Sea Lion, 5 WaU., 630 ; S. P., The Oaachita Cotton, 6 ibid., 521 ; S. P., Tl
Reform, 3 iHd,, 617; 8. P., CoppeU v. Hall, 7 ifrid., 542.

Where a neutral vessel, which had apparently set out on a lawf
voyage, was captured, she was restored, the only evidence against h
being that, when captured, she was out of the most direct and regal
course, which was explained by the fact of there having been rouj
weather, which made it desirable for her to take the course she did.

The Sea Witch. 6 Wall., 242.

A cargo shipped &om a neutral country by neutrals resident there, a,'
destined ostensibly to a neutral port, was restored with costs after ca j
ure in a saspicious region, and where the vessel on its outward voys^^
had violated a blockade; there having been nothing to fix on the ue
trals themselves any connection with the ownership or outward voja^
of the vessel (which was itself condemned), nor anything to prove thi
their purposes were not lawfal. Bat a certain portion of the carg<
which had ^ been shipped like the rest, except that the shipper was «
merchant residing and doing business in the enemy's country, was cod
demned.

The Flying Send, G Wall., 263.

A vessel was condemned for intended breach of the blockade of th
soathem coast, having been found near Great Abaco Island, with m
destination sufliciently proved, without sufficient documents, with
cargo of which much the largest part consisted of contraband of wai
and with many letters addressed to one of the blockaded ports, for whi&
her chief officer declared that she meant to run.

The Adela, ihid,, 266.

The liability of a vessel to capture and condemnation for breach ^
blockade ceases at the end of her return voyage.

The Wren, ibid., 582.

To jastify a neatral vessel in attempting to enter a blockaded port sl^
mast be in such distress as to render her entry a matter of nucoiitrollal>
necessity.

The Diana, 7 Wall., 354.

392

<:HAP. XVIII.] ENFORCEMENT OF. [§ 3ti2.

•

Daring the blockade of Port Eoyal in 1861 a Spanish steam vessel,
vith the permission of the commander of the blockading squadron, pat
iuto that port in distress, and was there seized as prize of war, and nsed
by the Government till June, 18G2, when she was brought to New York
and condemned. In June of the following year, however, the Govern-
meut in the mean time using the vessel, a decree of restitution was
ordered; but the vessel never was restored. Subsequently the case
• ^as referred to a commissioner to ascertain the damages for the seizure
and detention, and final judgment was rendered by the court on his
award. This judgment was reversed on account of the impropriety of
one of the items included in the decree of the district court. But it was
held, that clearly the vessel was not lawful prize of war or subject to
<^ptaro, and that her owners were entitled to fair indemnity, though
it might well be doubted whether the case was not more properly a
subject of diplomatic adjustment than of determination by the courts.

The Nneatra Sefiora de Regia, 17 Wail., 29.

The capture of a vessel for violation of blockade may be lawful, if
Qiade by a national vessel, though the latter be not part of the block-
«<Hng force.

The Memphis, Blatch. Prize Cases, 260.

Where an American vessel had entered and cleared from a port under
blockade, and, while returning to Kew Orleans, was captured by a ves-
^1 belonging to the French blockading squadron, from which the cap-
tain of the former rescued her and brought her to her destination, the
port of New Orleans; and demand, subsequently, being made of the
Executive to deliver up th^ vessel and cargo, both on account of the
^i<i breach of blockade and rescue, it was advised that the captors
had DO right of property in said vessel and cargo, and that the liabil-
^^y of the vessel to condemnation, if it ever existed, had ceased by the
termination of her voyage at the port of her destination.

It was also advised that the case called for a judicial decision settling
^rtain questions of fact concerning the legality of the blockade, capt-
^^ etc., before the Executive could act, and that, as independently of
^^ there was no constitutional right vested in the Executive to deliver
^P the property of an American citizen, claimed by him as his own, and
^ l^ia actual iK>ssession, and not condemned, nor legally acUndged to
belong to another.

3 Op., 377, Grundy, 1838.

Preparations towards entering a blockaded port, such as hovering
^^H it, with other acts from which an intention to enter may be in-
•erred, are grounds for seizure, unless the blockade is exclusively for
•^grefig or egress.

^C4KMa, 1 Newb. Adm.,393; The Hiawatha, Blntoh. Pr. Ca., 1 ; 2 Blatch.,
«35; The EiopreM, Blatch. Pr. Ca., 175 ; Hallcck's Int. Law, ch. 23, $ 23.

393

§ 362.] BLOCKADE. [CHAP. XVimJL

But a mere abandoned purpose, there having been no overt act^ to
execute it, is not ground for seizure.

1 Kent Com., 147 ; The John Gilpin, Blatch. Pr. Ca., 291.

The declBion in the eaae of the Springbok ( Blatch. Pr. Ca. , 380, 434 ; 5 Wall. , 1), nc^^ted
in ite proper place above, has been the eabject of great discnasion. The Springbok, left
London December 9, 1862, for Nassan, and when one hundred and fifty milee fronk. the
latter port was captured by the Federal cruiser Sonoma, the ground being that Bh^» in>
tended to run the blockade. The vessel and her cargo were condemned by the disfc-vict
court of New York. This decree was reversed by the Supreme Court of the Ux^ :£ted
States in December, 1866, so far as concerns the ship, but affirmed au to the cargo. Tl&em
was nothing in the papers taken from the Springbok to show that the intention -was
to run the blockade. The condemnation of the cargo of the Springbok was pu'fc by
the Chief Justice on the alternative of either contraband or blockade-running. ' * TVe
do not now refer,'' he said (3 Wall., 26), *Ho the character of the cargo for the par-
pose of determining whether it was liable to condemnation as contraband, hut for tht
purpose of ascertaining its real destination ; for^ \oe repeat, oontrahand or not, it coulS not
he condemned if really destined for Kassau and not heyond; and, contraband or not, it must
he condemned if destined to any rehtl port, for all rehtl ports were under hloekade-^
* * * « Upon the whole case we cannot doubt that the cargo was origlnaUy shipp^
with intent to violate the blockade ; that the owners of the cargo intended that i^
shonld be transshipped at Nassau into some vessel more likely to succeed in rauDizE^
safely to a blockaded port than the Springbok ; that the voyage from London to t J^^
blockaded port was, as to cargo, both in law and in the intent of the parties, a'C> ^
voyage ; and that the liability to condemnation, if captured during any part of th.^**^
voyage, attached to the cargo from the time of sailing."

The British foreign office was advised on the 13th of March, 1863, by Sir Willia^^^
Atherton, Sir Roundell Palmer, and Dr. Phi Hi more (the then law officers of the Crowr^^^^ ^
that ''there was nothing to justify the seizure of the bark Springbok and hercsTg^^^^^
and that Her Majesty's Government would be Justified in demanding the immedisC^^'
restitution of the ship and cargo, without submitting to any adjudication by. an Amei
icHU prize court."

But while this was the law so given, the British commissioner, when the case
before the Mixed Claims Commission, under the Treaty of Washington, in May, It
united with the other commissioners in finding against the claimant for the cargo.

The following is part of an opinion on the same case by Mr. Mellish, afterwai
lord Justice, and Sir W. Harcourt :

" The first observation we shall make is :

'* That in a case where the ship itself is really and bona fide destined for a neutral ]
(and that is here admitted to be the case), the onus of the proof lies on the captoi
and they ought to give clear and conclusive evidence to Justify the inference that tl
cargo itself has a different destination.

'* The Supreme Court, in their Judgment, very Justly state that the real question
which the condemnation must turn is the original destination of the cargo. But wh<
we come to examine the grounds upon which the court founds a conclusion advei
to the cargo, we find that these grounds are many of them inaccurate in fact ai
erroneous in principle.

''The first ground taken by the court as Justifying the conclusion that Nassau w
not the real destination of the cargo is derived from the form of the bills of lading
the manifest. The court argue that because the bills of lading did not disclose t.
contents of the packages, and because no consignee was named, but the cargo was <
livered to order and assigns, these circumstances showed an attempt at ' franduli
concealment ' of the destination of the cargo. We have before us a statement of aoi
of the principal sworn brokers of London, which accords with our own ezperieu<
that the billa of lading are in the usual and regular form of consignments to an ager-

394

:HAP. XVIII.] ENFORCEMENT OP. [§ 36*^^

!br sale in mch a port as Nassau. It is probable that the co art may have been misled
>7 irhat we believe to be the fact^ viz, that in shipments to the American ports
preater particularity of specification is required in order to comply with the require-
neutB of the American custom-hoase. But as these documents are perfectly regular,
kod in the form usually adopted in the course of trade to an English port, there is
lothing in them which could raise an inference of * fraudulent concealment.'

" The next point taken by the court is, that a sale at Nassau could not have been
jitendody because the bills of lading made the cargo deliverable to order. It is quite
brae that such a form of the bills of lading was, as the court says, ' a nepcatiou that a
sale had been made to any one at Nassau.' But that was not the case set up by the
claimants. Their case was, that the cargo was sent to an agent at Nassau for sale
there, and for such an object the form of the bills of lading was perfectly regular and
appropriate.

" On these two main points, therefore, the judgment seems to us to have procee<led
on a misapprehension of the facts.

*' The next ground on which the court rely is the character of the cargo itself.
^ot, as the court Justly say, that .the cargo, if really destined for Nassau, could be
condemned as contraband, but rather that the fact of its being contraband was a
good ground of inference that it was not destined for Nassau. This point, which is
much insist^ on by thtf court, appears to us to be founded on an entire misappre-
beunon. The fact that the goods, or some of them, were contraband, so far from fur-
nishing an argument that they were not destined for sale at Nassau, is, on the con-
trary, as far as it goes, a proof the other way. Nassau was a place which had a very
insignificant home trade of its own, but which had developed a very great trade as an
csfrepdtof contraband goods, which adventurers in blockade* running xiurchased there
for the purposes of their business. The very things which a person sending goods for
theNsasau market would be the most likely to consign there would be goods fitted for
blockade-running. But such a trade on the part of the person who seilt them to Nas-
^ for sale there would be a perfectly lawful trade. If A sent a cargo of muskets to
^UBsa, intending to sell them there, they could not be condemned because he thought
^ ^sa likely so buy them there in order to run them through the blockade. The fact,
tWefore^ of the nature of the cargo does not seem to us to justify the material infer-
^006 which the court draw from it, viz, that the cargo could not have been intended
^orsAle at Nassau.

"The last point taken by the court iu order to prove the material issue, viz, whether
A&oaajidf sale was or was not intended at Nassau, is equally founded on a remarka-
ble oilBapprehension of fact. The court say : * If these circumstances were insufficient
S'OQnds for a satisfactory conclusion, another might be found in the presence of the
^ftrnde in the harbor of Nassau, with undisguised intent to run the blockade about
^ot time when the arrival of the Springbok was expected. It seems extremely prob-
able that she had been sent to Nassau to await the arrival of the Springbok and to
^nvey her cargo to a belligerent and blockaded port.' Now, it is a remarkable fact
^Qthe case that this supposed circumstance, by which the court seek to eke out what
*PP«an to have been felt a somewhat weak chain of inference, is itself a complete
^take. The Gertrude was not at Nassau awaiting the arrival of the Springbok.
^ the contrary, we are informed that it appears by Lloyd's List that at the time
^ben the Springbok was captured close to Nassau the Gertrude was lying at Queens-
^^^1 in Ireland. The inference of intended transshipment drawn from the assumed
Pt^nceof the Gertrude at Nassau, therefore, entirely falls to the ground.

^t aeems to us that these arguments relied on by the court fail to establish the
point on which alone the Judgment of condemnation coald be founded, and that the
**ct« of the ease are at least equally consistent with the hypothesis of an intended
^^AtNaesau, which, considering the undoubted neutral destination of the vessel, we
^bink it lay with the captors to rebut.

395

:5> 362.] BLOCKADE. [chap, xviil

*' Looking at the whole circnmstances, we have no donbt that, if the facte of the
case had been clearly set forth and distinctly apprehended, as they appear upon the
papers before ns, the cargo ought not to have been, and would not have been, con-
demned, and that, couseqaently, there has been in this case a miscarriage of Jns-
tice."

The following criticisms by European publicists may be studied in this connection :

''In later times Great Britain has practically abandoned her theory of paper block-
ades. In an official proclamation, published at the commencement of the Crimeaa
war (see London Gazette of the 20th March, 1854) we read, ' And she (Her Majesty the
<2ueen) must maintain the right of a belligerent to prevent neutrals from breaking
any effective blockade which may be established with an adequate force against the
enemy's forts, harbors, or coasts.' The declaration of the congress of Paris of 1856,
con6rms the principle in the following words : ' Les blocus pour Atre obligatoiree doi-
Tent dire effectifs, c'est-l^-dlre, maintenns par une force sufflsante pour interdire r^lle*
ment Taccte du littoral de I'ennemi.' (Blockades in order to be binding must be effect-
ive; that is to say, maintained by a force sufficient really to prevent access to the
coast of the enemy.)

'' Accordingly Bluntschli observes, in his work on Modern International Law ( 829) :
' A port is understood to be actually blockaded when ingress to and egress from it
are prevented by vessels-of-war stationed off it, or by the land batteries of the block-
ading power. No specific number of vessels is required, nor a specific number of can-
non in the land batteries ; but the warlike force must be sufficiently close and strong
to prevent merchant vessels from entering or leaving it, not on individtULl occasions,
nor yet necessarily on every occasion, hvi ae a general rule.*

"In section 833, Bluntschli propounds this other axiom of international law, '^
blockade liute only as long aeitia effective.* . If the blockading squadron is forced to with-
draw before a superior force of the enemy, the blockade must be considered as raised.
It follows, then, that a neutral vessel on the hij^h seas, bound to a blockaded port, can-
not be seized for breach of blockade, even though the master has knowledge of the
blockade. To the eye of international law, a real breach of blockade is committed
only when a neutral vessel attempts by force or stratagem to enter or leave the block-
aded port. Bluntschli further contends (^ 835) that, in every case, the vessel can be
lawfully captured only iohile in the act of attempting to violate the blockade.

"It must be conceded — it is, in fact, admitted — that the blockade of the ports of the
rebel States during the war of secession was, on the whole, effective. The doctrine,
however, upon which the Supreme Court of the United States has condemned the
«ntire cargo of the Springbok, a neutral vessel, on her way to a neutral port, is quite
monstrous, mure especially as the court acquits that veeeel of any intention to violate
the blockade. If such a doctrine were carried to its logical conclusions, and were en-
forced by a belligerent great maritime power as rigorously as it has been by the United
States, all neutral property on the high seas might be treated as lawful prize of war.

''The official report of Mr. Robert 6. Hale, the agent and counsel of the United
^States Government, before the Mixed Commission, contains, at page 367 of the appen-
dix, a copy of a * Confidential memorandum for the use of the commissioners on the
part of the United States in the American-British Joint High Commission, Washington,
1871, which was inclosed in a communication addressed to each of the American com-
missioners by the honorable Mr. Fish, the American Secretary of State, on February
22, 1871.' In these secret instructions Mr. Fish informed the American commisBionen
that ' one hundred and sixty-seven cases have been condemned by the prize courts of
the United States. With the exception of one case, that of the Springbok, the Depart-
ment of State is not aware of a disposition on the part of the British Government to
^dissent from any final adjudication of the Supreme Court of the United States in a
prize case. "

Gessner'd Rev. of Springbok case. To same effect, see Qessner's Int. Law, 33L

390

^AP. XVIII.] ENFORCEMENT OP. [§ 362.

• « The Executive GoTemment of the United States has always avowed a readiness

oa i^ P^^ to redress any grievance resalting to neutral commerce from the decision

of its prize coartSfif the circumstances apx>ear to call for it. The case of the Adela

m»y^ cited, in which the Hon. W. H. Seward, the United States Secretary of State,.

thus expressed himself in a note addressed to the Hon. W. Stuart, the British charge-

d'affaires at Washington, on 27th September, 186.3. < If the principles of maritime^

Iftw shall finally be decided against the claimants, dae reparation therefor shall be-

made. The Government has no disposition to claim any unlawful belligerent rights^.

and will cheerfully grant to neutrals, who may be injured by the operations of the

United States forces the same redress which it would expect if the position of the-

parties were reversed.' These are noble words, worthy of the representative of a*

great nation which can afford to be both generous and just.

"Theinsarrection of seven of the Southern States of the Federal Union of North
American States having acquired the proportions of a civil war, the Goverumeut of the
Union gave notice to the European powers that they had established a blockade of
tlie entire Atlantic coast of the United States from the bay of Chesapeake to the
month of the Rio Grande, an extent of about three thousand miles. From a corre-
spondence respecting instructions given to naval officers of the United States in regard^
to neutral Teasels and mails laid before the British Parliament (Parliamentary Papers,.
Korth America (1863), No. 5), it appears that the United States dag officer at Key
West informed the British commander, Hewett, that the United States cruisers had
leeeived orders to seize any British vessels whose names were forwarded to them-
from the Government of Washington, and that the fact of such vessels being bound'
from one British port to another would not prevent the United States officers from^
carrying out those orders. A representation was accordingly made by Mr. Stuart, Ihe
British charge d'affaires at Washington, to Mr. Seward, the Secretary of Stnte, in coti-
aeqnence of the capture of the British steamer Adela, bound from Liverpool and Ber-
mndato Nassau, for which latter port she was carrying a British mall, and the Sec-
retary of State on the following day communicated to Mr. Stuart a new set of instruc-
tions, which he was addressiug in the name of the President to the Secretary of the
I^»vy, 'laying down rules for the future guidance of United States naval officers,
^hich essentially modified the instructions, under which they had been latterly sup-
P<*e<l to he authorized to seize certain ships, of which a list had been furnished, when
or where those ships were met with, irrespective of the observance of intcmational-
»*'''•' Mr. Seward subsequently communicated to Mr. Stuart a copy of the instruc-
tions, which the Presideut had directed him to transmit to the Secretary of the Navy,.
Md which copy was in fact forwarded by Mr. Stuart to Her Britannic Majesty's prin-
c'pal secretary of state for foreign affairs.

'^Raring premised that it was the duty of the naval officers to be vigilant in searoh-
*^*nd seizing vessels of whatever nation which were carrying contraband of war
|o insurgents of the United States, but that it was equally important that the provis-
ions of the naaritlme law in all cases be observed, the instructions proceeded to direct,
111 the third article, that whe;^ the visit was made the vessel was then not to be seized
^thoQt a search carefully made, so far as to render it reasonable to believe that she
^v engaged in carrying contraband of war to the insurgents and to their ports, of
otherwise violating the blockade, and that if it should appear that she was actually
^*^K&om one friendly or so-called neutral port to another, and not bouod or pro-
^*^^ to or from a port in the possession of the insurgents, she could not be law-
^^k seized. The date of these instructions was 8th Aagust, 1862. They were can-
"onsly worded, and if they had been carefully observed by the cruisers of the
doited States, their execution of the duty confided to them could have given no cause
^^^offense to neutral nations.
'Since 1 took up my pen to review the progress made during the last thirty years
rendering war less onerous to neutrals, a debate has taken place in the Upper
Q^bets of the States General of the Netherlands on the subject of the condemna-

301

§ 362.] BLOCEADB. [CHAP. XVIIL

tion of the cargo of the Springbok, with a view to prevent the doctrine npon which
the Supreme Coart of the United States Justified its decision from being generally
accepted in European prize courts. Count van Lynden van Sandenbnrg, minister
of state, in the sitting of the Upper Chamber of the States Qeneral, on Friday, 25tb
January, 1884, in the course of his speech, in which he set forth the history of the
capture and release of the vessel and the condemnation of her cargo, stated that he
knew that the attention of several powers is now directed to the question, which has
at length awumed an international character, seeing that it vitally affects neutral
rights. 'It matters not,' he said, *who the owners of her cargo may be, to what
nationality they may belong, whether they are English, French, Dutch, or even
American. A great principle is at stake, and the only satisfactory and conclusive
proof that the United States Govemmont can give that it at length abandons and
renounces a doctrine destructive of neutral trade and a judgment pronounced in
error, will be the awarding full compensation to the despoiled owners of the cargo,
the long-suffering victims of a flagrant miscarriage of Justice. Now, is it not,' he
continued, ' the clear course, is it not the duty of the Netherlands Government, of
the Government of the country which gave birth to Hugo Grotius, to approach the
Uoited States of North America, in conjunction with other maritime powers, for the
purpose of prevailing on their Government to retrace its steps. In my opinion it is
clearly our duty.'

''Herr Van der Does de Willebois, the Netherlands minister of foreign affairs, in
his reply, stated that the Netherlands minister at Washington had already been
instructed to take every opportunity to press earnestly the subject on the American
Government."

Sir T. Twiss, Belligerent Eights, &c., 1884.

Sir R. Phillimore (3 Int. Law, 3d ed., 490), says: "It seems to me, after much con-
sideration, and with all respect for the high character of the tribunal, difficult to
support the decision of the majority of the Supreme Court of the United States in the
case of the Springbok, that a cargo shipped for a neutral port can be condemned on
the ground that it was intended to transship it at that port, and forward it by another
vessel to a blockaded port." He refers to Sir Travers Twiss's pamphlet on "Belliger-
ent Bights on the High Seas" as authority.

Mr. Hall, in his treatise on international law (Oxford, 1884), thus speaks: "Dur-
ing the American civil war the courts of the United States gave a violent extension
to the notion of contraband destination, borrowing for the purpose the name of a doc-
trine of the English courts, of wholly different nature from that by whioh they were
themselves guided. * * * By the American courts during the civil war the idea
of continuous voyage was seized oH, and was applied to cases of contraband and
blockade. Vessels were captured while on their voyage from one neutral port to an-
other, and then condemned as carriers of contraband, or for Intent to break block-
ade. • • • The American decisions have been universally reprobated outside the
United States^ and would probably find no defenders in their own country.'' (( 847,
note. ) In section 263 it is said that " during the American civil war, the courts of the
United States strained and denaturalized the principles of English blockade law to
cover doctrines of unfortunate violence." Mr. Hall cites, as dissenting from the doe-
trine, a letter from Mr. Justice Clifford to Mr. Lawrence. (3 Law Mag. and Bev. (4th
fieries), 31.) Mr. Lawrence took the same position. {Ilnd.)

" Suppose a state of war between France and the United States : A French cruiser
would, under the old system, have the power of preventing a British neutral ship from
carrying an American cargo of com to Liverpool, and an American cruiser would
equally have the right of taking a French consignment of silk or fancy goods out o
a Cunard steamer on her way to America, because enemy's property was liable to

308

<;nAP. XVIU.] ENFOKCEMENT OF. ' [§ 362.

fire under the neotral flag. It is not too mach to say tbat war itself would be regarded
by the Britisb nation as far preferable to such a state of neatrality. * * * In these
^ix -wan (Franco- Austrian war of 1859, the Mexican war, the American civil war, the
Danuh war of 1864, the German war of 1866, and the Franco-German war of 1870),
ao attempt was made to interfere with neutral ships of commerce, except by blockade,
And the stoppage at sea of contraband of war, and, upon the whole, the world, but
more especially this country, gained immensely by it/'

144 Edinb. Rev., 359.

Kanchille, in his treatise on blockade (Paris, 1882), speaks of the Judgment of the
■Soprvme Court aa follows :

'* This decree, unprecise as it waa, not even designating the port whose blockade
the vessel was assumed to purpose to break, was nevertheless affirmed by the Mixed
Cominlasion, instituted by the two governments, by virtue of the twelfth article of
the Treaty of Washington. By these decisions the theory of blockade violation re-
-ceived a new extension, which may be formulated as follows : A belligerent can seize
And condemn for blockade breaking the cargo of a vessel immediately after its depart-
ure fioQi one neutral port for another neutral port, no matter how distant may be the
blockaded port, if there be a suspicion that the cargo, after having bedn disembarked in
the friendly port, should afterwards be transported to a blockaded port and placed at
the dispoeitiou of the enemy; it being held that the voyage from one neutral port to
Another neutral port, and the subsequent voyage from the second neutral port to a
blockaded port constitute one and the same voyage which is tainted on principle.

" This theory of continuity of voyage is not a new invention, but only recently has
it \>een applied to the Tiblation of blockades. It is a revival of the famous rule of the
war of 1756, by which it was held to be incompatible with neutrality for the subject
of a neutral state to engage in time of war in a commerce between a belligerent and
his colonies when such commerce was interdicted by the latter belligerent in time of
P^ce. With the view of escaping the harshness of this rule neutrals took an interme-
diate oeatral port as the medium by which they carried on trade between the colony
«Dd the mother country. In order to stop this trade Sir W. Scott invented what ho
called the doctrine of continuous voyages, by which the voyage from the intermediate
port to the mother country was held to be continuous with that between the colony
ttd the intermediate port, though no seizures were permitted except on voyages be-
tween the intermediate port and the belligerent port. This doctrine was pushed
^7 the Supreme Court of the United States so as to make it sustain the seizure of a ves-
*^ between the port of original departure and the intermediate neutral port, and this
^ the conjecture of an ulterior adventure being projected for the goods in question
^ such intermediate neutral port to a blockaded port. * * * The effect of this
^iiion is to impose on a voyage between two neutral ports the penalties whieh may
^ unposed on a voyage between a neutral and a belligerent port. The decision rests
on the fiction that though the vessel in which the goods are to be carried is changed at
tbemtermediate port, yet the voyage is the same; and the reason would apply no mat-
t« how many changes the goods might be subjected to, or how many successive neu-
^ ports they might pass through. But international law repudiates such fictions,
'otemational law being eminently a law based on common sense. The fiction in the
Pi^N&t case imposes on neutral commerce restrictions irrationally onerous. It gives
tobeUigeient cmiseis a power over neutral ports greater and more arbitrary than
they poeaen in respect to belligerent ports, since, while neutrals can carry to non-
"^oekided belligerent ports objects which are not contraband of war, they cannot,
^^thoQt risk of seizure, carry the same objects to another neutral port. It cannot be
**^d that this traffic between friendly ports can be prohibited on account of the suspi-
^•on that the cargo disembarked in a neutral port will ultimately be consigned to a
•ockadedport, for this restriction does not serve to protect neutral rights. All will
^ to the Judgment of the opposing belligerent. He will be sole Judge of a q aes-

399

§ 362.] BLOCKADE. [CDAP. XVI I

tion in which his interests are greatly involved. Tlie preliminary examinatfo
which wonld extend to all vessels whatever issning from nentral ports, woald
undertaken on the high seas, involving an entire overhauling of papers and car^
while the decision wonld be left to a prize conrt of the captor, after an examivn
tion, more or less protracted, and hence prejudicial to the neutral rights. Heii.<
the theory of continuity of voyage destroys the freedom of the seas, and the cc»:
mercial freedom of neutrals. It makes the blockading belligerent the despots
the ocean, putting neutral commerce at his feet. It will be sufficient for him.
blockade a single port to enable hiin, if his navy be sufficient, to paralyze all neuC^i
commerce. * * * jm the saltpeter of commerce, to borrow an illustration ^<
Sir Travers Twiss, is sent from Bengal, through Calcutta, to London , which is -t,
great enirepSt from which European nations receive this staple. Now, what wi>vi
be the effect of war in such a relation f A nentral ship freighted with saltpeter^
route for Loudon would be liable to seizure by the belligerent, though London ^wn
a nentral port, en the ground that London was not the final port of destination, bi
that the saltpeter was ultimately to be forwarded from Loudon to a belligerent. O
there might be a war between France and Russia, in which France undertakes t
blockade the Russian Baltic ports. A cargo of a character absolutely innocent, sue^
as sugar or coffee, is embarked at an American poi*t on an English ship destined ft>
London. This vessel, if the ' continuous voyage ' theory be good, could be arrested
when half over the Atlantic by a French cruiser on the suspicion that the cargo, aft^^
its arrival at London, might be bought by a Russian agent and forwarded to boiib^
blockaded Baltic port. In The Peterhoff (5 Wall., 28; Blatch. Pr. Ca., 403,521), tb*
rule was pushed still further, so as to apply the doctrine of continuous voyages t^
cases where the goods were to be transported from one nentral port to another, aDc3
to be thence taken by land to the belligerent. The Peterhoff was an English mer-
cliant ship which was freighted in London for Matamoras, a neutral Mexican port •
She was captured en route by the United States cruiser Vanderbilt, on the suspicion
that her destination was a blockaded Texan port. On August 1, 18&3, she was held
good prize by the New York prize court. The seizure of the ship was not foUoweJ
by protests from the British Government, Lord Russell's answer to the proprietorfi
of the Peterhoff showing that that Government was by no means prepared to disavovtf
the theory of continuous voyages as laid down by the Federal courte. (Arch. Dipl -
1863, iv, 105-100.) This* approbation' by the British Government of the doctrio*
thus laid down, shows how little respect that Government has for the declaration c^
Paris, of which it was one of the principal signers, for this theory assigns the saiu*
validity to fictitious as to effective blockades, the declaration only authorizing tb «
blockade of waters adjoining the place blockaded. Not only, also, would the enemjT'
coast be subject to this supervision, since blockading squadrons could be placed
around nentral ports to arrest all vessels issuing therefrom which carry goods wbid
might find their way into an enemy's territory. This doctrine, also, implicitly nulli
fies the rule, admitted by Great Britain in 1856, that an enemy's property on a nentrs*
ship is free. But, anomalous as is this position of Great Britain in accepting th I
extension of the doctrine of continuity of voyages, still more anomalous is the pt^&i
tion of the United States, which heretofore had vindicated the fhsedom of enemy*
goods when under neutral flag. It is true that the United States did not, S8(l><
Great Britain, accede to the declaration of Paris, but, on the other hand, the Unit c^
States had uniformly maintained the position that only effective blockades w<?r*
obligatory, and President Lincoln had notified all the powers of his intention ^
maintain during the war these particular principles of the congress of Paris. ( Arclii ^
Dipl. 1861, iv, 115.) In conclusion, we must hold that this ruling in the Spriugtoo*
case is not only dangerous, but is a retrogressive step in international maritime

Du Bloous Maritime, par Paul Fauchllle, Parioy 1882, 335 f .
400

CHAP. XVIII.J ENFORCEMENT OF. [§ 362.

^' Opiniou delivered by Messrs. Arntz, profeAsor of inUTuational law in the UnlTeoB-
itj uf Bnisseld aud advocate ; Asser, professor of interuatioual law in the UDiversity
of Amsterdam and legal councilor of the department of foreign affairs at The Hagne,
advocate, etc. ; Bnlmerincq, privy coancilor, professor of international law in the
University of Heidelberg, et«. ; Gessner, doctor of civil law, acting imperial coan-
cilor of legation at Berlin ; William Edward Hall, doctor of laws of the University
of Oxford ; De Martens, professor of international law in the University of St. Peters-
burg and councilor at the minister of foreign affairs there, etc. ; Pierantoni, professor
of international law in the University of Rome, and member of the council of diplo-
matic controversy, etc. ; Renault, professor of international law in the Faculty of Law
and in the Free School of Political Science in Paris ; Alberio Rolin, professor of law
in the University of Ghent and advocate ; and Sir Travers Twiss, Q. C, formerly pro-
fessor of international law in London and of civil law in Oxford, late Queen's advo-
cate-general, etc.

*' We, the undersigned^ members of the maritime prize commission, nominated by
the Institute of International Law from amongst its members to frame a scheme
of international maritime prize law, having been consulted as to the juridical sound-
ness of the doctrine laid down and applied by the Supreme Court of the United States
of America in the case of the Springbok, hav« unanimously given the following opin-
ion:

"That the theory of continuous voyages, as we find it enimciated and applied in
t^e judgment of the Supreme Court of the United States of America, which condemned
^ good prize of war the entire cargo of the British bark Springbok (1867), a neu-
tral vessel on its way to a neutral port, is subversive of an established rule of the law
•^f uiariUme warfare, according to which neutral property on board a vessel under a
uentral flag, whilst on its way to another neutral port, is not liable to capture or con-
iiscatioii by a belligerent as lawful prize of war ; that such trade when ctftrried on be-
tween neutral ports has, according to the law of nations, ever been held to be abso-
^Qt«ly free, and that the novel theory, as before propounded, whereby it is presumed
that the cargo, after having been unladen in a neutral port, will have an ulterior des-
tination to some enemy port, would aggravate the hindrances to which the trade of
QSQtrals is already exposed, and would, to use the words of Bluntschli, 'annihilate*
^ch trade, by subjecting their property to confiscation, not upon proof of an actual
voyage of the vessel and cargo to an enemy port, but upon sutpidon that the cargo,
^r having been unladen at the neutral port to which the vessel is bound, may be

t^uisRhipped into some other vessel and carried to some effectively blockaded enemy

port.

''That theory above propounded tends to contravene the efforts of the European
P^^^n to establish a uniform doctrine respecting the immunity from capture of all
I Property under a neutral flag, contr aband of war alone excepted.

''That the theory in question must be regarded as a serious inroad upon the rights
of neutral nations, inasmuch as the fact of the destination of a neutral vessel to a neu-
I ^ port would no longer suffice of itself to prevent the capture of goods non-contra-
f W on board.

"That, furthermore, the result would be that, as regards blockade, every neutral
P<^towhicha neutral vessel might be carrying a neutral cargo would become oon-
^ticely a blockaded port if there were the slightest ground for 9uspecting that the
^^iftfter being unladen in such neutral port was intended to be forwarded in some
'^^wr vessel to some port actually blockaded.

^% the undersigned, are accordingly of opinion that it is extremely desirable that

*^* Government of the United States of America, which has been on several occasions

^ttalona promoter of important amendments of the rules of maritime warfare, in

^>it«reBtof neutrals, should take an early opportunity of declaring, in such form as

^'^yteefit, that it does not intend to incorporate the above-propounded theory into

8. MiK. 162— VOL. Ill 2'} 401

§ 362.] BLOCKADE. [CHAP. XVIIL

ks system of maritime prize law, and that the condemnation of the cargo of the Spring-
bok shall not be adopted as a precedent by its prize courts. '*

(Here follow the names above given.)

14 Revue de droit int., 127-129. The Springbok case is criticiaed by Gesaner, in same
review, 7, 236 j by Westlake, 7, 258 ; by Geesner in his Reform des Kriegseerechte ; by
Sir Travers Twiss in a pamphlet on this special topic ; by '* D. C. L." in a pamphlet to
the same effect. It is supported by Mr. Bancroft Davis in a pamphlet entitled Lea
Tribunaux de Prises des Stats Unis, &c., 1878.

Fiore, in the second edition of his work on International Law, translated into French
by Antoine (1886), vol. 3, i 1649| takes, when commenting on the Springbok case, the
following distinctions :

*^ Contraband goods destined for one belligerent may be seized by the other belliger-
ent when found on a neutral ship sailing between neutral ports if it be plain that the
intention was to supply the goods to the former belligerent. In this sense voya/^s of
such goods are continuous, as they constitute an indivisible^nity as links in the same
chain. But this by itself would not Justify the seizure of the vessel^ but only the seiz-
ure of such goods as are actually contraband, and of no other.''

The following is a translation of the conclusion of an article on maritime warfare,
contributed to the Revue des peux Mondes, of September 1, 1883, by Monsieur Arthar
Desjardins, avocat-general of the court of cassation, Paris, member of the Institute of
France, etc. :

"The prize courts of the United States of America have slidden much further down
the above slippery and dangerous path. Their decisions in the case of the Britisii
bark Springbok and its cargo lire so manifestly in subversion of the universally sc-
cepted doctrines of international law, that Monsieur Charles de Boeck, In his recent
able work (De la propriety priv6e ennemi sous pavilion ennemi) denounces tbemas
' highly dangerouB tnnovatton^,' and devotes an entire chapter to their examinatioD
and refutation. Dr. Gessner, an eminent Jurist and councilor of the Berlin foreign
office, has pronounced these Judgments ' monstrous.' Blnntschli declared that thej
are more pregnant with danger to neutral commerce than the exploded ^ paper hM-
a^esJ Even in England the law officers of the Crown, Sir Robert Phillimore, Sir
William Atherton, and Sir Roundell Palmer (now lord chancellor of England), pro-
nounced the seizure of the Springbok illegal.

'' The question which now awaits the decision of the maritime powers is whetb«r
they are to take a step, not in advance, but a decided retrograde step in respect of neu-
tral rights ; whether the progress made in 1856 is to be lost, whether all the jaristt
and statesmen who believed that they had pretty well defined the rights of nentralfl,
have for years past been only benighted dreamers of dreams.

** The Springbok, a British sailing vessel, chartered and loaded by British m«^
chants, sailed from London, on the 2d December, 1862, bound for Nassau, in the Brit*
ish colony, the Bahamas, carrying a general cargo consisting chiefly of Manchetter
goods, haberdashery, groceries, drugs, stationery, &c. An insignificant portion of the
cargo, worth about £700 sterling, consisted of articles which the American pri<0
courts thought fit to regard as contraband of frar, while the appraised value of the
entire cargo was upwards of £66,000 sterling. The proportion of alleged contraband
was little more than one per cent. Upon the 3d of February, 1863, the Springbok,
while sailing direct to Nassau and about 150 miles distant from that port, was seiM
uithout any eearchf by the United States cruiser Sonoma. The vessel and the entire
cargo were summarily condemned as good prize of war by the New York district
prize court. Upon appeal, the Supreme Court of the United States, restored the
vessel on the ground that a neutral port was irs bona fide destination, but that court
condemned the entire cargo by a Judgment which ran as follows :

'* * Upon the whole case we cannot doubt that the cargo was originally shipped
with intent to violate the blockade ; that the owners of thecargo intended that it ihoold

402

CHAP. XVIII.] ENFORCEMENT OP. [§362.

be tnnsBhipped at Nassau into some vessel more likely to succeed in reaching safely a
blockaded port than the Springbok ; that the voyage from London to the blockaded
port was, as to cargo, both in law and in the intent of the parties, one voyage ; and
tiiat the liability to condemnation, if captured during any part of that Toyag^e, at-
tached to the cargo from the time of sailing.' *

"All the above-quoted legal display rests on a judicial sophism. In respect of the
evgo between the i>ort of loading and the euepecied port of delivery (a port which the
frifeoMHTf was unable to ffpecify), there is, forsooth, but ^one voyage.^ Now, a voyage
io the widest application of the word, has never been held in maritime legal phrase-
ology to comprise more than the space traversed by a vessel between its ports of load-
ing and unloading. But to pretend that the * voyage * still continues after the cargo
has been discharged and the commercial operation has been completed is, indeed, the
^erj acme of the judicial temerity. The proposition is rendered more glaringly pre-
pOBteroas by the court's admission that the voyage ^as to the ahip^ ended at Na^au.
The Yoysge is at an end *a9totke sfcip,' yet it is continuous ' aa to the cargo.* This is
•tanling law. llie proposition seems more monstrous and absurd when we bear iu
Blind thatno transshipment having taken place,it was utterly impossible to say whether
or not the cargo would be sent forward, or, if so sent forward, to what port it might
&>' To tack such a hypothetical, indefinite, imaginary voyage without date of de-
P^nre or fixed destination on to the completed voyage, and thus to convert the real
port of destination (Nassau) into an intermediate port, is to misconstrue the facte of
ibe case and to establish the right of confiscation by a wretched play upon words.

"To hold a vessel and cargo liable to capture simply because it is on iie way to a
blockaded port is, in our opinion, a departure from the true principles of international
i>v. What, we ask, was the use of the congress of Paris ip 1656 abrogating paper
tt<l other fictitious blockades, if England and the United States persist in maintain-
ing that the bare intent constitutes a breach of blockade, and that the setting sail for
< blockaded port establishes that intent. The paradox is altogether indefensible in
tbe case of a vessel sailing from one neutral port to another neutral port. According
to the Englisli and American doctrine it would, under the circumstances, be neces-
*vy to prove that the vessePs destination was simulated ; the intent would be inferred
^ the care taken to conceal it and to mislead the belligerent as to the real des-
^ation. But even in an English prize court the captor would be required to produce
^ clearest proqf of the alleged concealed destination. There would be no guessing
fosormisingy no inferring, no Jumping at illogical conclusions^ as in the case of the
Spiingbok. In the case of that vessel the Supreme Court's judgment is in the highest
^^1^ arbitrary and unjust. Firstly, the blockade is held to have been broken be-
**^ there was an intention to break it ; secondly, the neutral vessel is held to have
^ the intention to break the blockade, not because it was proceeding to a certain
blockaded port, but because though bound to a neutral port it mt^Af subsequently pro-
^thenee to 'some blockaded port,' or the cargo might be sent forward by trans-
^pineot to ' some blockaded port.' No I Such doctrines are repugnant to every prin-
ciple of international justice. No more in the United States than in Europe are such
"^ibtleties compatible with the law of nations. The case of the Springbok is one of
^bose npon which public opinion, even in the United States, has already decisively
^demned the judges. • • •

''The American people are too enlightened, they possess too much practical sound
**iiae, not to perceive that if the doctrine of their Supreme Court were generally
^pted, if the Springbok precedent were followed by future belligerents, neutral
^'^^unBeiee would be completely crippled, paralyzed, or destroyed on the advent of a
'^time war. For instance, American coasting vessels carrying cotton from New
^^^09 to New York would be liable to capture while on that honest voyage, because
^e cotton might subsequently be forwarded to some blockaded port and some bellig-
^'^t emiaer suspected such ulterior destination. In time of war, courage — rohur et
^ Ir^fleaB — would be necessary to risk a voyage from one neutra'i port to anot\iet. VL

§ 362.] BLOCKADE. [CHAP. XVIB

the merchants in countries engaged in war were to abstain from risking their good
at sea because private enemy property does not yet ei\joy immunity from captnn
and if neutral vessels were laid up, and their owners renounced a lucrative nentn
carrying trade out of fear of being seized, as the Springbok was, on suspicion of beioj
Engaged on 'a continuous voyage' to some undefined blockaded port, what wooli
become of maritime international trade f What, we ask, will be the position of thoe
nations which, in consequence of their need of foreign supplies, cannot possibly dis
pense with that trade f The subject is a very serious one. It deserves, it oommandi
the meditation and action of statesmen, and especially of American statesmen."

The '' synopsis" of the Springbok's cargo shows, that out of a cargo of £65,677, onl
£700 was assigned to goods which might be considered contraband.

On the same topic may be consulted Mr. J. C. Bancroft Davis, *'Tribnnanz d
prise aux etats Unis, Paris, 1878.

The raling of the Supreme Court in the Springbok case, togethe
with the opinions on it by foreign jurists, are given above at large, ij
consequence not merely of the extraordinary attention the decision a
the court has attracted abroad, but of the vast importance of the mm
to neutral rights. The decision in this case, so it was said by Bluntr
schli, at once one of the most liberal and most accurate of modem pab-
licists, has inflicted a more serious blow on neutral rights than didaU
the orders in council put together. As is shown by the prior note, tho
disapproval of this famous decision, so strongly expressed by Bluntschli,
is shared with more or less intensity by all the eminent publicists of th»
continent of Europe whose attention bas been called to it, while em
in England, from whose precedents the decision was in part drawn, iti»
treated by high authorities as aiming an unjustifiable blow at neatral
rights. As to the opinion of the court, the following remarks may ^
made:

(1) The opinion of the court has not that logical precision ^hich.
enables us to discover how far the question determined involves a qaes-
tiou of blockade. It cannot be clearly ascertained from the opinioi^
whether the goods confiscated were held good prize because it was in-
tended that they should run the blockade of some particular block-
aded Confederate port, or because they were contraband destined for
belligerent use in the Confederacy.

(2) The decision was approved by a bare majority of the court, aod
among the dissenting judges was Mr. Justice Nelson, whose knowledge
of international law was not equaled by that of any of his assodatasy
and Mr. Justice Clifford, distinguished as much for strong sense as for
his practice in maritime cases. That the case, in any view, was ndt, in
the hurry of business, considered with that care which its great iDipor-
tance, as it now appears to us, demanded, is evident not merely from the
looseness and vagueness of its terms, but from the fact that no dissent-
ing opinion is recorded, nor the arguments of counsel even noted. It is
a matter of great regret, also, that the masterly argument of Mr. EvartS)
before the Mixed Commission afterwards instructed to act on this class
of claims, and printed in the proceedings of that commission (vol. xxi]
Lib. Dept. of State), an argument which is one of the ablest expositioDi
of iutemational law in this relation which has ever appeared, and is recog
nized as such by the highest foreign authority, had not been delivered be
fore the Supreme Court so as to have enabled that tribunal to becomi
aware of the great gravity of the question involved.

(3) While the great body of foreign jurists, British as well asooi
. tiuental, protested against the decision, it is not a little significao

404

<;IUP. XVIII.] ENFORCEMENT OF. • [§ 362.

tliat at the beariDg before the commissiou the British commissiouer
Tiimed in affirming thie condemnation. Down to this hearing it was
understood that the British Government, acting under the advice of its
law officers, had disapproved of the condemnation. Mr. Evarts' argu-
ment, however, went to show that the condemnation, while perhaps sus-
tainable under the British system as defined by Sir W. Scott, was in
antagonism, not merely to the doctrines set forth in Sir W. Scott's time
by the United States, but to those modern restrictions of blockade, by
which alone the rights of neutral commerce can be sustained against a
belligerent having the mastery of the seas. It is not strange tnat the
British commissioner should have declined to set aside a ruling so con-
sistent with the older British precedents and so favorable to belligerent
maiitime ascendancy.

(4) The decision cannot be accepted without discarding those rules
as to ueatral rights for which the United States made war in 1812, and
which, except in the Springbok and cognate cases, the executive de-
partmeut of the United States Government, when stating the law, has
since then consistently vindicated. The first of these is that blockades
mast be of specific ports. 1 he second is that there can be no confis-
cation of non-contraband goods owned by neutrals and in neutral ships,
on the ground that it is probable that such goods may be, at one or more
interm^iate ports, transshipped or retransshipped, and then find their
vaj to a port blockaded by the party seizing.

See tn/ra, $ 3dc5, where the queatiou of ** continuous voyages " is more fully dis-
cussed.

(5) The ruling is in conflict with the views generally expressed by
theexeeative department of the Government of the United States, a
deitartuient which has not merely co-ordinate authority in this respect
with the judiciary, but is especially charged with the determination of
the law of blockade, so far as concerns our relations to foreign states.

See citations in this chapter, and also supra, ^ 238, 3!29a.

To agree to perform a duty effectively is a very diflerent thing from
agreeing to perform it absolutely ; the latter engagement is a guaran-
tee, the former is an engagement to perform the duty unless castis in-
terrene. A carrier, for instance, does not insure against a sudden frost
which a prudent person could not foresee, nor against peculiar and ex-
traordinary storms ; nor even against defective performance by em-
ployes, when this defectiveness arises from extraordinary interferences
Qot to be prognosticated. And so it is with blockades. A blockade to
be effective need not be perfect. It is not necessary that the beleaguered
port should be hermetically sealed. It is not enough to make the block-
&cle ineffective that on some particularly stormy night a blockade-run-
oer sUd through the blockading squadron. Nor is it enough that
through some exceptional and rare negligence of the ofScers of one of
the blockading vessels a blockade-runner was allowed to pass wlien
perfect vigilance could have arrested him. But if the blockade is not
in the main effective — if it can be easily eluded — if escaping its toils is
doe not to casus or some rare and exceptional negligence, but to a gen-
eral laxity or want of efficiency — then such blockade is not valid.

Wfaart. Com. Am. Law, $ 233.

''In some cases where a blockading squadron, from the nature of the
^ebannels leading to a port, can be eluded with ease, a large number of

405

$ 363.] • BLOCKADE. [CHAP. XVH

successfal evasions may be insafScient to destroy the legal efficienc
of the blockade. Thas, daring the American oivil war the blockad
of Charleston was nsually maintained by several ships, of which on
lay off the bar between the two principal channels of entrance, whil
two or three others crnised outside within sigualing distance. Th
amount and disposition of force seems to have been thought by tl
British Government amply sufQcient to create the degree of risk nece
sary under the English view of international law, although, from tl
peculiar nati;ire of the coast, a large number of vessels succeeded in ge
ting in and out during the whole continuance of the blockade.''

Hall, Int. Law, 618, citing Bernard, Nent. of Great Britain, chaps, x and xi.

" If approach for inquiry were permissible, it will readily be sw
that the greatest facilities would be afforded to elude the blockade."

Field, J. ; The Cheshire, 3 Wall., 235 ; 8. P., The Spes, 5 C. Rob., 80 ; The Chi

lott« Christine, 6 C. Rob., 101.
That the President of the United States may declare a blockade without t

action of Congress, see The Sarah Starr, Blatch. Pr. Ca., 69 ; The Amy W

wick, 2 Spragne, 1*23; S. C , 2 Black., 635.

(2) Must be brought to prize court.

§363.

The subject and necessity of prize courts in cases of beUigerent seizures of zi

trals is discussed aupra^ $$ 329 jf.
The report of the British law ofBoers on the rules of admiralty jurisdictiozi

time of war will be found in the Brit, and For. St. Pap. for 183*2-^33, t

889.

After a regular condemnation of a vessel and cargo in a prize cou
for breach of blockade, the President cannot remit the forfeitnre an
restore the property or its proceeds to the claimant.

10 Op., 452, Bates, 1863.

'^ In the absence of rules in relation to blockades in time of peac€
those applicable to blockades in time of war are the only ones accortliu,
to which che case of the Lone is to be considered. Whether seized 1^
consequence of one or the other description of blockade, the duties of th
captors are the same, both with reference to the captured vessel, wbicl
they are bound so to secure as to insure their continued possessiou o
it, and to her crew, who are to be treated with all the humanity aQ«
kindness which are consistent with the security of the prize, and vhicb
it is gratifying to perceive from your note, have been extended to citi
zeni of the United States detained by naval forces of France. It woal«
be to the President a cause of sincere regret if anything connected ^t<
the case under consideration should lead to a change in the conduct c
the ofQcers commanding those forces towards American citizens fallii*
into their hands of which the United States would have just cause t
complain."

Mr. Vail, Acting Sec. of State, to Mr. Pontoia, Oct. 23, 1838. MSS. Not*
France.

406

CHAP. XVIII.] PACIFIC BLOCKADE, [§ 364.

. III. PACIFIC BLOCKADE,

§364.

Whether there can be such a thing as a pacific blockade is a ques-
tion which was much discussed at the beginning of the late civil^war in
the United States. That the institution of a blockade does not itself
imply a recognition of belligerent rights in the party blockaded was
maintained by Mr. Gladstone ; that a ^' pacific blockade " could be in-
Btituted in full conformity with international law was maintained by
Mr. Sumner in an elaborate speech delivered in February, 1869. The
precedents in this connection are as follows :

France, Great Britain, and Russia, having ineffectually attempted to
mediate between Greece and Turkey, Turkey resolutely repelling their
intervention, blockaded, in 1827, all the coasts of Greece where Turkish
armies were encamped. This was stated by the three powers to the
Snhan to be a paciflc measure, but was not considered by him in that
light, since it paralyzed his armies. The result was the battle of Na-
varino, by which the Turkish navy was destroyed.

The next nominally paciflc blockade, to follow the enumeration of
Fanchille (Blocus Maritime, Paris, 1882), was instituted by France in
l^lf for the purpose of closing the Tagus, in order to redress inju-
ries alleged to have been committed on French subjects by Portugal.
This blockade resulted in a treaty signed at Lisbon, on July 14, 1831, by
which reparation was given to France for the injuries complained of,
an«l the Portuguese vessels captured by France were restored.

In 1833 France and Great Britain imposed a blockade on the ports of*
Holland without terminating the pacific relations between the block-
ading squadron and Holland. The object was to compel the assent of
Holland to the recognition of Belgium.

In 1838 France took the same course in blockading the ports of Mex-
ico and isolating the fort of St. Jean d'Ulloa, protesting at the same
time that pacific relations continued between the two countries. Mex-
ico, however, not regarding the measure as pacific, declared war against
France.

Iq the same year, France and Great Britain united in blockading
the ports of the Argentine Bepublic. The blockade lasted ten years,
and daring the whole of this period the blockading powers insisted
that peace still continued.

In 1850 Great Britain, as a punishment for certain alleged injuries
iuflieted two years before by Greek soldiers on the officers of the Biit-
ish ship Fantbme, and to compel payment of certain other indemnities,

blockaded the ports of Greece. The blockade was withdrawn without

war.

See 1 Calvo, $ 676.

In 1860 Victor Emmanuel, then King of Piedmont, joined the revo-
Intionary Government of Naples in blockading ports in Sicily, then
held by the King of Naples. The relations between the two courts of
"^rin and Naples continued to be what were called pacific.

In 1862 Great Britain imposed what was called a pacific blockade
en the port of Bio de Janeiro. The avowed object was redress for pil-
*6^by the local population, of the Prince of Wales, an English vessel.
^1 Bossell, in imposing this blockade, declared that, while taking

407

§ 364.] BLOCKADE. [CHAP. XVm

this measure, the British Government continued to be animated by
friendly sentiments towards the Emperor of Brazil.

In February, 1879, the coast of Bolivia, then in alliance with Peru,
was blockaded by Chili, as a pretended pacific measure of redress, war
not being declared until the succeeding April.

In 1880 something very much like a blockade was instituted by the
appearance at the port of Dulcigno of a fleet of British, German, French,
Austrian, Russian, and Italian men-of-war, the avowed object being to
compel the Turkish Government to execute the treaty which conceded
this town to Montenegro. This was declared to be nothing more than
a "naval demonstration," intended to overawe the Sultan, who was
asked by the six powers to join in this "demonstration" by withdraw-
ing his forces from the town. But it was announced that if the town
was not given up it would be blockaded.

Yet, notwithstanding these precedents, the weight of authority is
that while as a war measure a blockade when effectual will be inter-
nationally respected, this will not be the case with a blockade in-
stituted as part of a system of pacific pressure. As is declared by
Hautefeuille (ii, 264), while treaty stipulations as to blockades are
numerous, they all of them imply a war between one of the contracting
parties with a third power, in which war the other contracting party is^
neutral. The declaration, also, of April 16, 1856, which was signed bj^
all the powers except the United States, Spain, and Mexico, proscribes,
in equally formal terms, blockades instituted in peace. This expressioi
jof opinion is all the more effective from the fact that it is not an asser-
tion of a principle that is new, but rather a recognition of a princip](
that is established. The Institut de droit international, also, at if
meeting at The Hague, in 1874, resolved by a large majority that pacifli
blockades were not legitimate methods of international pressure -
(Kevue de droit int., 1875, 609.) But this action was not unanimous ^
nor are publicists and statesmen in general accord when treating (^:f
this important question. "Nous nous sommes trouv^s 1& dans uik.^
Hituatlon tr^s difficile, nous faisions un blocus, ce qui n'est pas la guerr*^
complete, la guerre d6clar6e." (Discours de M. Guizot, Feb. 8, 1843-,
cited by Fauchille, 48.) A pacific blockade is declared by Eolin-Ja^3-
quemyus, a very high authority, to be an intermediate state betwe^xi
peace and war. (Revue de droit int., 1876, 165.)

See Deane, Law of Blockade, 45-48. Holtz. Ency., i, 807.

Mr. Lawrence cites Hautefeuille, Droits des Nations Neutres (torn. ii>
274, 2me ed.), as stating that " the war of France with Mexico, whioh
terminated by a treaty of peace in 1839, was preceded by two years of
blockade. In the last case, a question, which it was agreed to refer to
the arbitration of a third i)ower, arose, on the conclusion of peaoe,
whether the vessels sequestered during the blockade, and before tb©
declaration of war by JMexico, should be restored. However t:li^
point, whether a blockade is to be deemed a pacific remedy, may ^
settled, as regards the parties immediately concerned, it cannot ^
sustained as to neutrals*, otherwise than as a belligerent measare.
From the right of conquest exercised over the territorial sea arises tli®
right of blockade, which is the right of jurisdiction accorded by the
primitive law to the territorial sovereign ; a right by virtue of wtii<^
he excludes all foreigners from passing through his dominions, ^^^

4<^

CHAP. XVm.] DUTY OF NEUTRAL AS TO BLOCKADE-RUNNING. [§ 365.

the immediate consequence of which is to cut off the place sur-
rounded by the conquered territory from all communication with the
foreigners beyond it. The duty of these foreigners, of these neutrals,
is to respect the law of the territorial sovereignty ; they cannot eAter
his dominions without his consent, without being exposed to the ap-
plication of the laws which they violate. A blockade is, then, an act
of war. It is the result of a previous act, which can only take place
during war, the complete conquest and continued possession of a part
of the enemy's territory. (Ibid., tom. iii, 10, 182.")

Lawrence's Wheaton (ed. 1863), 845.

Flore (Droit int., 2d ed., 1885, trans. byAntoine), § 1231, while maintain
ing that pacific blockades are not inconsistent with the settled principles
of international law, holds that they are virtually reprisals, and are sub-
ject to the rules governing reprisals as well as those governing blockades.
He insists, however, that such a pacific blockade does not affect third
powere. But this distinction is properly rejected in a note by the trans-
lator. A blockade merely binding the blockading and blockaded powers
▼ould be illusory.

IV. DUTY OF NEUTRAL AS TO BLOCKADE-RUKNING.

i 365.

During the late civil war large interests in England were concerned
m movements for breaking the blockade in the Southern ports. The
profits were enormous, and vast sums of money were spent, and great
skill and energy employed in taking advantage of the opportunity,
^a^a, a port ordinarily without business, became the center of a large
AQd active trade, and teemed with adventurers, speculators, and sailors
engaged in fitting out and manning vessels to run into the blockaded
ports. Many of these vessels were built in England and Scotland for
tiiifi very end ; large, deep, swift, painted in such a way as not to catch
^^^ eje, capable of carrying large freight, and manned with bold
Aod skillful navigators. The Government of the United States ad-
dressed to the British Government protests against this system, organ-
^ and carried on in and through British ports and with British capi-
^1. But Earl Russell, in a letter of May 10, 1862, declared that fitting
OQt vessels of this class was not in contravention either of British mu-
nicipal law or of the law of nations. He likened the case in this respect
^ that of exportations of munitions of war, the exportation of which no
?tate is required by international law to prohibit. A blockade-runner,
^^ J8 true, if proved to be such, can be seized with its cargo and confis-
cated, bat tbe remedy is to be limited to this seizure. (Arch. Dipl., •
1^2, iv, lOO.) This position was elaborately sustained by Mountague
^rnard in his treatise on British neutrality, ch. xiL By Bolin- Jacque-
^yns (Revue de droit international for 1871, 127-129), tbe position is
^pted with some modifications, and only in subordination to the
general rule that to impose on a neutral the duty of stopping the build-
ing and sailing of blockade-runners would impose a new and onerous
Borden on neutrals, and give an undue advantage to belligerency over
neutrality. (See Fauchille, Blocus Maritime, Paris, 1882, 391. The
^bject is more fully examined infra, $§ 402 ff. See also Whart. on Gon-
^ts, § 479.)

409

§ 3G5.] BLOCKADE. [CHAP

'^ The carrying on trade with a blockaded port is not a breach of m
pal law nor illegal, so s^ to prevent a coart of the loci eontractui
enforcing the contract of which the trade is the snbject. A m
state is not bonnd by the law of nations to impede or diminish it
trade by municipal restrictions. A neutral merchant may ship ,
prohibited jure belU^ and they may be rightfully seized and condei
It is one of the cases where two ^ conflicting rights ' exist which i
party may exercise without charging the other with doing wrong. I
transportation is not prohibited by the laws of the neutral sovej
his subjects may lawfully be concerned in it, and as the ri^ht c
lawfully authorizes a belligerent power to seize and condemn the g
he may lawfully do it. Whatever is not prohibited by the posit^v
of a country is lawful. Although the law of nations is part of th
nicipal law of England, and it may be said that by that law a
band trade is prohibite<i to neutrals, and consequently unlawfc
the law of nations does not declare the trade to be unlawful. It
authorizes the seizure of the contraband articles by the bellig
powers. (The Helen, 35 Law J. fN. S.)i Adm., 2; compare with i
Santissima Trinidad, 7 Wheat., ^83 : Eichardson v. Marine Insu
Co., 6 Mass., 113; Seton and others v. Low, 1 Johns. Ex parte Chai
34 Law J. (N. S.), Chanc, 17.)"

2 HaUeck'B Int. Law (Baker's ed.), 176. See in/ra^ f 375.
410

CHAPTER XIX,

COHTBABAHD.

L MXTNITIONS OF WAR CONTRABAND, % 366.

n. And whatxtbr is essential to bbluobrent support. •

(1) As to coal, $ 369.

(2) As to provisions, $ 370.

(3) As to money, $ 371.

(4) As to horses, $ 372.

(5) As to merchandise, $ 373.

(6) As to soldiers, $ 373a.

Hr. How FAR DISPATCHES AND DIPLOMATIC AGENTS ARE CONTRABAND, % 874.
f^. PXNALTIES ON CONTRABAND.

May be seized on ^igh seas, % 375.

I. MUmXIONS OF WAR CONTRABAND.

§368.

»j the ^^ anned neatrality " entered into daring the American Bevo-
kt^onary War by Kassia, Denmark, and Sweden in 1780, '^ being the
thi^^ee northern powers from whose dominions chiefly the other mari-
I^Qcie nations of Europe received supplies of timber and other naval
stores," the effort was made ^^ to strike these from the list of contra-
^^d, or by some means to exempt them from cstptare." It was under-
stood, however, at the time, that this was an exception from the law of
^tions. By this law ^'timber and other articles for the equipment of
sliips are contraband of war." Hence the recital of this principle in
«^*y'8 treaty ought to give no just cause of offense to France.

Mr. Pickering, Sec. of State, to Mr. Pinckney, Jan. 16, 1797. MSS. Inst., Minis-
ters.

^ If the circumstance, and the cargo and its destination, show un-
^^ivocally that its application must be to military purposes, materials
P^ for both peace and war may assume the character of contraband, but
^ those circumstances afford solid ground for the opinion that the sus-
P^ted materials are designed only for the ordinary purposes of the
^^tiou then there can be no just motive for interrupting a commerce
^«ich ought to be pronounced lawful.

, 'This principle would seem to mark the boundaries of the conflicting
^Suts of neutral and belligerent powers ; fbr neutrals have a right to

411

§ 368.] CONTRABAND. [CHAP. XIX,

carry on their usual comiuerce, and belligerents have a right to prevent
them from supplying the enemy with instruments of war. • • •

"In the catalogue of contraband agreed on between the United
States and Great Britain there is one description which leaves to con-
struction what specific articles it may comprehend. It is in the follow-
ing words: ' and generally whatever may serve directly to the equipment
of vessels.'

'' In construing this question the British courts of vice-admiralty ap-
pear to consider it as including whatever might, by any possibility, be
applied to the equipment of vessels. Although the article be in itself
unfit and improper for that use, and therefore be not in common so ap-
plied, yet if it might by possibility, from a want of other proper mate-
rials, admit of such an application, the courts adjudge, although such
other materials be not wanting at the port of destination, that it is con-
traband of war.

" This construction we deem alike unfriendly and unjust. We con-
ceive that the expression which has been cited comprehends only such
articles as in themselves are proper for, and in their ordinary use are
applied to, the equipment of vessels.

"Under the British construction all operation is referred to the word
^directly.' Expunge it from the sentence and according to them the
sense will remain the same. But plain reason and the soundest and
most universally admitted rules of construction forbid us to interi>ret
by garbling a compact The' word 'directly' is an important word,
which forms a necessary and essential part of the description, and must
have been inserted for the purpose of having its due weight in ascer-
taining the sense of the article. We can discover no effect which is
allowed to it unless it be admitted to limit the description to materials
which, in their ordinary use and common application, are in considerable
quantities proper for, or * serve directly to, the equipment of vessels.'
To exclude it, or to construe the article as if it was excluded, is to sub-
stitute another agreement lor that of the parties.

" We do not admit the expression we are considering to be in itself
doubtful. But if it was so, rules of construction prescribed by reason
and adopted by consent seem to us to reject the interpretation of the
British courts.

" As this contract is formed between a belligerent and neutral nation,
it must have been designed to secure the rights of each, and conse-
quently to protect that commerce which neutrals may lawfully carry on,
as well as to authorize the seizure of articles which they may not law-
fully carry to the enemy. But under the interpretation complained of,
not only articles of doubtful use with re/spect to the equipment of ves-
sels, but such as are not proper for that purpose, or, if proper, only in
very small quantities, and which, therefore, are not in common so applied^
are, because they may by mere possibility admit of that application.^

412

CHAP. XIX.] MUNITIONS OF WAB. [§ 368.

classed with articles prohibited, on the principle that they are for the
purposes of war.

'' This construction ought to be rejected, because it would swell the
list of contraband to an extent ^hich the laws and usages of nations
do not authorize ; it would prohibit, as being for the equipment of ves-
sels, articles plainly not destined for that purpose, but fitted and nec-
essary for the ordinary occupations of men in peace. And it would
consequently presuppose a surrender on the part of the United States
of rights in themselves unquestionable, and the exercise of which is
essential to themselves and not injurious to Britain in the prosecution
of the war in which she is engaged."

Mr. Marshall, Sec. of State, to Mr. King, Sept. 20, 1800. MSS. Inst., Ministers.
2 Am. State Pap., (For. Rel.,) 486. See 5 Am. Law Rev., 256.

Ill the draft convention, suggested on January 5, 1804, by Mr. Madi-
son, Secretary of State, to Mr. Monroe, minister to England, occurs the
following:

**Abt. IV. Contraband of war shall consist of the following articles
only: Saltpeter, sulphur, cuirasses, pikes, swords, sword-belts, knap-
sacks, saddles and bridles, cannon, mortars, fire-arms, pistols, bombs,
grenades, bullets, firelocks, flints, matches, and gunpowder ; excepting
however, the quantity of the said articles which may be necessary for the
defense or use of the ship and those who compose the crew, and no other
articles whatever, not here enumerated, shall be reputed contraband or
liable to confiscation, but shall pass freely without being subjected to
the smallest diflflculty, unless they be enemy's property; and it is to be
particularly understood that under the denomination of enemy's prop
^rtjr is not to be comprised the merchandise of the growth, produce, or
maumfactures of the countries or dominions at war which shall have
been acquired by the citizens or subjects of the neutral power, and
shall be transported for their account, which merchandise cannot in
auy case or on any pretext be excepted from the freedom of the neu-
tral flag."

^n this Mr. Madison makes the following observations :

^'' This enumeration of contraband articles is copied from the treaty of

l"*^! between Great Britain and Bussia. It is sufficiently limited, and

tbat treaty is an authority more likely than any other to be respected

^y the British Government. The sequel of the article, which protects

the productions of an hostile colony converted into neutral property, is

taken fpom the same model, with the addition of the terms 'in any case

♦; ^^ ^^ any pretext' This addition is meant to embrace more explicitly

our right to trade freely with the colonies at war with Great Britain,

^^^ between them and all papts of the world in colonial productions,

^^H at the time not enemy's but neutral property; a trade equally

legitimate in itself with that between neutral countries directly and

413

§ 368.] CONTRABAND. [CHAP. XIX.

in their respective vessels and such colonies, which her regulations do
not contest.

<< In support of this right, in opposition to the British doctrine that a
trade not allowed by a nation in time of peace cannot be opened to
nentrals in time of war, it may be urged that all nations are in the
practice of varying more or less in time of war, their commercial laws
from the state of these laws in time of peace, a practice agreeable to
reason as well as favorable to neutral nations ; that the change may
be made in time of war on considerations not incident to a state of
war, but on such as are known to have the same effect in time of peace;
that Great Britain herself is in the regular practice of changing her
navigation and commercial laws in times of war, particularly in rela-
tion to a neutral intercourse with her colonies ; that at this time she
admits a trade between neutral countries and the colonies of her ene-
mies, when carried on directly between them or between the former
and herself, interrupting only a direct trade between such colonies and
their parent state, and between them and countries in Europe, other
than those to which the neutral trade may respectively belong ; that
as she does not contest the right of neutrals to trade with hostile col-
onies within these limitations, the trade can be and actually is carried
on indirectly between such colonies and all countries, even those to which
the colonies belong ; and consequently that the effect of her doctrine
and her practice is not to deprive her enemy of their colonial trade,
bat merely to lessen the value of it in proportion to the charges inci-
dent to the circuitous course into which it is forced, an advantage to
her which, if just in itself, would not be sufficiently so to balance the
impolitic vexations accruing to a neutral and friendly nation."

MSS. Inst., Ministers.

'^ I have the honor to acknowledge the receipt of your note of the 25th
ultimo, wherein you present certain reasons which lead your Gk)vem-
ment to ask that this Government, in common with other powers, con-
sent to a general prohibition of the passage of the Dardanelles or the
Black Sea by vessels carrying dynamite.

<* In the form in which the request is presented, this Government
would not feel justified in giving this measure its unqualified sanction,
inasmuch as it is founded not so much on the inherent danger to life
and property of the explosives named while in transit as on the possible
ulterior wish to which they may be put. I need scarcely adduce argu-
ment to show that such a course is tantamount to enlarging the inter-
national definition of contraband of war, and making the substances in
question contraband also in time of peace. To this proposition the
United States could not assent, either as a general principle or in its
practical application to a class of explosives whose employment is
widely extending in all operations of mining and tunneling, and which,

• 414

0:^AP. XIX.] MUNITIONS OF WAE. [§ 368.

(htly ased, plays an important part in the internal development of

natural resources of nearly all countries.
**lf, however, the question presented were one of regulating the con-
v^^^ance of a dangerous detonating or inflammable substance, so that its
tjT^insit might be unaccompanied by peril to life, this Government could
&xi<l no objection to such a course. Our own laws (sections 4472, 5353,
an^l 5354 of the Revised Statutes) prohibit the carriage of such explo-
sives upon any vessel or vehicle whatever used for the conveyance of
paaifisengers to the United States or between the States and Territories;
and section 5354 especially considers the death of any person when
caused by the transit or attempted transit of such explosives as entail-
iiig upon the offenders the penalty for manslaughter. Our statutes,
bowever, do not absolutely prohibit, bur simply regulate the conveyance
<>f explosives.

'*Thi8 Government will be happy to consider any scheme for the regu-
^tion of the conveyance of explosives through the straits of the Porte,
^Qd if it shall not appear that the rights of peaceful and legitimate com-
merce or of transit through waters by which the world's commerce must
''ecessarily pass are interfered, with or prohibited, your Government
'^^.r rest assured that no objection will be made to the enforcement of
«acli legislation."

2dr. Frelingbuysen, Sec. of State, to Aristarchi Bey, Deo. 4, 1882. M6S. Notes,
Turkey; For. Rel., 1883.

<Hr. King's correspoDdence in 1799 as to contraband is given 2 Am. St. Pap
(For Rel.), 494/.

Hr. Seward's report of Jan. 26, 1863, giving correspondence in relation to the
capture of British vessels sailing from one British port to another with con-
traband articles for the Confederate States, is given in Senate Ex. Doc. 27,
37th Cong., 3d sess. ,

'pbere are two classes of goods as to which no question can arise in

tiii% coDnection. The first comprises things that could not possibly be

ttsed for warlike purposes, e. g.j books in no way connected with war,

articles of family dress, etc. The second comprises articles which could

^ot be used for any but warlike purposes, e. g.j cannon, torpedoes, and

fire-arms so constructed as to be fitted only for military use. Between

these two classes fall innumerable articles, whose character in this re-

*P^t depends upon the concrete case. Iron, for instance, would not be

^narily contraband ; but if it be forwarded to a cannon foundry

ponging to a belligerent to be made up into cannon, and if the whole

r^naaction be for the purpose of thus applying the iron, then the iron

^^ this particular case would be contraband.

Whart. Com. Am. Law, i 226. See 5 Am. Law Rev., 256.

That it is no breach of neutrality to sell munitions of war to a belligerent, see

infra, $ 391.
Aa to causal relationship requisite to impose responsibility in such cases, see
Whart. Crim. Law, $$ 159/., 1961.

415

§ 369.] CONTKABAND. [CHAP. XIX.

II. AND WHATEVER 18 ESSES TIAL TO BELLIGERENT SUPPORT.

(1) As TO COAL.

§ 369.

<< The discussion whioh at this time is going on respecting the mili-
tary character of coal, and whether it is now exd/uded from general
commerce as contraband of war is a striking illustration of the ten-
dency to enlarge this power of prohibition and seizure, and of the neces-
sity of watching its exercise with unabated vigilance. Here is an article,
not exclusively nor even principally used in war, but which enters into
general consumption in the arts of peace, to which, indeed, it is now
vitally necessary. It has become also important in commercial naviga-
tion. It is a product of nature with which some regions are bounti-
fully supplied while others are destitute of it, and its transportation,
instead of meeting with impediments, should be aided and encouraged.
The attempt to enable belligerent nations to prevent all trade in thim
most valuable accessory to mechanical power has no just claim for sup-
port in the law of natious; and the United States avow their determi-
nation to oppose it so far as their vessels are concerned."

Mr. Cass, Seo. of State, to Mr. MoBon, Jnne ^, 1859. MSS. Inst.i Franoe.

*<The undersigned. Secretary of State of the United States, having
taken the President's instructions, has now the honor to reply to tbfe<
note which was addressed to the undersigned by the honorable Williaxu
Stuart, Her Britannic Majesty's charg6 d'affaires, on the 25th day of
September last, concerning certain proceedings of the collector of cas-
toips at New York, affecting clearances of vessds and cargoes from
that port to British ports in the Bahama Islands.

^' In June last, Lord Lyons, Her Britannic M^esty's minister, then
residing here, submitted to the undersigned a letter which had then re-
cently been addressed to his lordship by P. Edwards, esq., her M^estj's
acting consul at New York. It was set forth in that communicatioD
that the custom-house authorities in that port had, upon several occft*
sions, thrown serious impediments in the way of the shipment of coal^
as ordinary merchandise, to Nassau, and, in some cases where the goods
were already embarked and even cleared at the custom-house, they had
refused to permit the vessel to go to sea until such goods had been
relanded; and that one of the ofiScials had shown him an order, issued
from the Treasury Department, of the 18th of April, in which shipments
of coal where prohibited to any ports or places north of Gape St. Roque
and west of the fifteenth degree of longitude east, where there was a
reason to suspect that it might be intended for the use of the socall^
Confederate Government or ships, and this prohibition embraced all
the British North American colonies British West Indies, Bennuda»
and the British possessions on the coast of South America. Mr*

416

CHAP. XIX.] MUNITIONS OF WAE : COAL, [§ 369.

Edwards also stated^ iu the same letter, that, apon inquiry of the offi-
cer having saperintendence of the clearance bureau whether it was in-
tended that this order should be strictly enforced, that officer replied
that such was the collector's intention. Mr. Edwards proceeded to
state that a British merchant, largely interested in the trade of the
^orth American colonies and West Indies, had informed him that that
merchant had made repeated applications to the custom-house to be
allowed to export coal, some of which was to be tendered for the use of
Her Majesty's vessels upon the West India station, at the same time
offering to enter into bonds that it should be landed in foreign ports,
l>nt that his applications had all been rejected. Mr. Edwards then
<^inmented on what he assumed to be the instructions of the Hon. Mr.
Chase, Secretary of the Treasury of the United States, to the collector
at !Kew York, and complained that the very great discretionary powers
^hich those instructions were supposed to give to the collector had
^^^en used to the annoyance and injury of British trade, and, in this
^^Bnection, he represented that in one case where a quantity of dry
^oods, consisting of plain and printed cotton fabrics, had been shipped
^^ a British vessel for Nassau, the shippers were obliged, by the cus-
tom-house, to reland them before permission for tbe vessel to proceed
^ sea could be obtained ; that in another a number of packages of
^068 were prohibited from exportation ; and that, iu a more recent
^^^^ where an order had been received from some merchants at Nas-
^u to ship a quantity of drugs, consisting of sulphate of quinine, can-
^arides, and acids, only a portion of the order was permitted to be ex- *
ported. Mr. Edwards further stated that, at one time, strong excep-
tion was taken by the custom-house officials to what they alleged to be
^ extraordinary quantity of flour and provisions shipped at New York
' ^or the British West Indies, but that he was not aware that it amounted
' ^ actual prohibition. Mr. Edwards concluded with saying that much
! ii^convenience had been experienced, and yet <M)ntinued to be experi-
I enoed, by British merchants in New York from the manner in which
I tbemstroctions issued by the Treasury Department had been enforced;
i tbat articles of ordinary export were at times prohibited, while wares
^hich could be of service to belligerents have been allowed to pass
[ ^investigated.

''The letter of Lord Lyons was immediately submitted to the Secre-
^ of the Treasury for his consideration. That officer, upon examin-'
H the case, communicated a note to this Department, in which he
^tod that the restrictions upon the exportation of coal had been en-
forced by the collector under instructions of the Treasury, of the 18th
^^ April, 1862, alike upon domestic and foreign shipping clearing to
Pofts north of Gape St. Boque and west of the fifteenth degree of longi-
^d^east, and the Treasury would, with pleasure, remove all restric-
^08 upon trade when the existing imperative necessity, which had
Educed them should cease. The Secretary of the Treasury ^ 'S'r\tk\i\ft
a. Mis. 102— VOL. Ill 27 417

§ 369.] CONTRABAND. [CHAP.

note, commuuicated to the undersigned a report upon the general
ject from the collector of the customs at New York, in which that ol
stated that, in the exercise of the discretion devolved upon him, he
prohibited the shipment of coals, dry goods, shoes, quinine, and o
drugs, tin- ware, munitions of war, and sundry other articles, to Na
and the West Indies, and other foreign ports, when he had reasc
suspect that they were intended, by individual enterprise, or the Bp<
contracts of British subjects, directly to contribute to the welfare ol
enemies of the United States ; and, in regard to the statement of
Edwards, that articles of ordinary export have at times been probibi
while wares which could only be of service to a belligerent were alio
to pass unquestioned, the collector answered that he had no data ii
possession which could be referred to for the facts thus charged.

^^ The note of the S^ecretary of the Treasury and the report of the
lector of customs at New York were promptly communicated by
undersigned to the honorable Mr. Stuart, who transmitted the sane
bis Government.

^^ The note of Mr. Stuart which is now under consideration presc
as the undersigned is informed, the views of Her M^esty's Govemo
upon the subject of the correspondence which has been briefly bn
is believed, fairly recited. By that note the undersigned is infor
that Her Majesty's Government regard the subject as one of great
portance, and that, however desirous of making every allowance foi
difficulties of the position of the United States that Government
be, it is impossible for them to acquiesce in the system of interfere
with the legitimate trade of Great Britain which is now practiced by
United States authorities, such interference being not only in coi
vention of the treaties existing between Great Britain and the Un
States, but also the established principles of international law.

^< Mr. Stuart then, upon the documents which have been recited, st
the case which is thus pronounced to be inadmissible, as follows, nam
^ It appears that British vessels lawfully trading between New 1
and the Bahamas are in some instances refused clearances at New Y
and in others, after having been regularly cleared, with full knowlc
of the United States authorities of the articles on board, are detai
and searched, and are required either to reland portions of their car|
or to give bonds that no part of the cargo shall at any intermediate t
be used by the enemies of the United States. And these proceed!
are not claimed to be prescribed by any general law or regnlatioi
commerce, but are avowed to be wholly discretionary with the colle<
of the customs, to be enforced by him whenever he shall entertain
suspicion and belief that the real destination of the cargo is, medial
or immediately, to some port in the possession of the enemies of
United States, or If he shall be satisfied that there is imminent dau
that the goods, wares, and merchandise, of whatever description, loa(
on such vessels will fall into the possession or under the control of

418

CHAP. XIX.] MUNITIONB OF WAB: COAL. [$ 369.

insQTgente. The collector of the customs, iu his report of the 12th of
June, states that, in the exercise of the discretion devolved apon him
as an officer of the Government oif a sovereign people, he had prohib-
ited the shipment of coals and dry goods and shoes, and quinine and
other drugs, and tin-ware, and munitions of war, and sundry other arti-
cles, to Nassau and the West Indies, and other foreign ports where he
had reason to suspect that they were intended, by individual enter-
prise, or the special contracts of British subjects, to contribute directly
to the welfare of the enemies of the United States.'

'^Upon the facts thus assumed Mr. Stuart proceeds to argue the case,
saying that. Her Majesty's Government caunot call to mind any prin-
ciple of international jurisprudeuce, nor any precedent approved by
international law, to justify such interference with the trade of neu-
trals. That trade between Great Britain and the United States, at
least as to ports and places in the undisturbed possession of the United
States, is not in any degree affected by the state of war in which the
United States are engaged; and, moreover, that trade between Great
Britain and an enemy of the United States (the former preserving a
strict neutrality or indifference between the belligerent parties) can be
affected only by the international law of blockade. * Mr. Stuart pro-
<^8 to remark that the United States will admit that shipments
similar to those now subjected to interference from New York to Nas-
sau and other British ports, if made in time of peace, could not be pro-
Ubited without giving manifest cause of just complaint to Great Britain,
especially when such shipments remain open to other nations not hav-
iiig with the United States treaties of a more favorable nature. It fol-
lows, therefore, Mr. Stuart says, that to prohibit such shipments to
British subjects, while permitting them to the subjects of other nations,
^ to asMume a state of quasihostility to Great Britain, on account of
geofuraphical or other circumstances supposed to mix her up with the
interests of the enemy of the United States. Mr. Stuart proceeds to
'einark that the doctrine assumed by the United States authorities
^oold seem to be that goods which ordinarily may be lawfully stiipped
^m the United States by British subjects to certain British ports in
^Htish bottoms may be embargoed if, in the judgment of an inferior
^cer, such as a collector of a port, there is imminent danger that on
their passage to the British port the enemy will unlawttilly seize them,
^f that, having safely arrived at that port, they may with greater
^ty be exported thence to the enemy, or that they may in any way
^U into the possession of or under the control of the enemy. After
declaring that he is instructed to say that Her M^esty's Government
^Dot assent to such a doctrine, Mr. Stuart observes that Great Britain
has declared her neutrality in the contest now raging between the
United States Government and the so-called Confederate States, and
that she is consequently entitled to the rights of neutrals, and to insist
that her commerce shall not be interr«pted, except upon the pim^V^X^^

41»

$ &69.] CONTBABAND. [CHAP. XUL

which ordinarily apply to neutrals; that these principles authorize
nothing more than the maintenance of a strict and actual blockade ol
that enemy's ports, by such force as shall at least make it evident!}
dangerous to attempt to enter them. But the fact of a neutral shij:
having succeeded in evading a blockade affords uo ground for inter
national complaint, nor is it an offense which can be punished upon an^
subsequent seizure of the ship after she has successfully run the block
ade. Mr. Stuart adds that Her Majesty's Government consider that it
would be introducing a novel and dangerous principle in the law ol
nations if belligerents, instead of maintaining an effective blockade,
were to be allowed, upon mere suspicion or belief, well or ill founded,
that cextain merchandise could ultimately find its way into the enemy'c
country, to cut off all or any commerce between their commercial aUiec
and themselves; that this would be to substitute for the effectual block-
ade recognized by the law of nations a comparatively cheap and easy
method of interrupting the trade of neutrals. But when this illegal
substitution for such a blockade is applied to a particular nation, on
account of the geographical position of its territories, or for other rea-
sous, while the same ports of the belligerent are open for like exports
to other nations, the case assumes a still graver complexion. Mr. Stuart
adds that, although the question raised by the supposed interference
with the trade of Great Britain is as to what are the international
obligations of the United States towards Great Britain as a neutral
country, and not as to what may be at any given moment the local
laws of the United States, which laws cannot overreach treaty rights,
it may not be amiss to point out that the system of interference com
plained of is apparently not in conformity even with the terms of the
act of Congress under which the Treasury instructions were issued
that that act authorizes the refusal of clearances to foreign vessels oul^
when the Secretary of the Treasury shall have satisfactory reasons U
believe that the goods or some part of them are intended for ports (^
places in possession or under control of insurgents against the Unite*
States, and authorizes bonds to be taken only to secure the delivei*
of the cargo at the destination for which it is cleared, and in ord€
that no part thereof should be used in affording aid or comfort to aiB
I)erson or parties in insurrection against the authority of the Unite
States.

'' Mr. Stuart then argues that if this latter condition is to be und^
stood, as in reasonable construction it must, of any use preceding A-
livery at the specified destination, it may not be objectionable, but
meant to make the m^aster and owner responsible for any subsequex
use of the articles constituting the cargo after they have passed beyon
their power of control, it is unreasonable and perfectly inadmissible
Mr. Stuart further remarks that, with respect to the apprehension oj
imminent danger that goods, etc., may fall into the possession or under
the control of the insurgents, it may also be' observed that tJie act of

i20

CfHAP. XIX.] MUNITIONS OF WAR : COAL. [§369.

CTongress apx>ears to contaiD no provisions applicable to any exports by
^ea from the United States, the third section, which relates to that sub-
ject, being strictly confined to importations into any part of the United
States^ and to transportation npon any railroad, tnrnpike, or other road
^>T other means of transportation within the United States. Therefore
^3Ix. Staart remarks) it would appear that what has been done with
X'^eepect to this point is not only contrary to the obligations of treaties
nd of international law, but also beyond the special and extraordinary
liactments prepared by Congress itself. Mr. Staart concludes that the
^fresident cannot expect that Oreat Britain should allow British trade
ith her own colonies, by way of the United States, or the trade between
«rown colonies and the United States, to be fettered by restrictions
xid conditions inconsistent with treaties between the United States and
O-reat Britain, and repugnant to international law, and that therefore
er Majesty's Oovemment expect that the President, in the exercise of
lis discretion, will prohibit the imposing of all such restrictions and con-
Itions as have thus been complained of.
^^The undersigned regrets that Mr. Staart, while so steadily insist-
gthat the proceedings of which he complains are in contravention of
i^Kftternational law, has not thought it important to favor the undersigned
t th references to the particular principles or maxims of that law which
thus assumed to be infringed. This omission is the more regretted
^^^cause the examination of authorities made by the undersigned has
'^Sed in bringing those principles and maxims into view. Mr. Stuart
^5fc.8 equally omitted to Indicate the particular treaty obligations of the
^^nited States which he claims have been infringed. The undersigned,
however, finds in the convention to regulate the commerce between the
^^ited States and His Britannic Majesty, which was concluded on the
^^ day of July, 1815, and which was renewed by the convention of the
^til August, 1817, the treaty obligations which, in the absence of refer-
^^ceby Mr. Stuart, are assumed to be those to which Mr. Stuart alludes,
-'^^e first of these is in the words following:

*'*Abticle 1. There shall be, between the territories of the United

^t^^tes of America and all the territories of His Britannic Majesty in

^^irope, a reciprocal liberty of commerce. The inhabitants of the two

^^^TintTies, respectively, shall have liberty freely and securely to come,

^^th their ships and cargoes, to all such places, i>orts, and rivers in the

^^^tories aforesaid to which other foreigners are i)ermitted to come, to

^^ter into the same, and to remain and reside in any part of said terri-

^^^es respectively ; also to hire and occupy houses and warehouses for

^'^^ purposes of their commerce, and, generally, the merchants and

^^^"'^deis of each nation, respectively, shalF enjoy the most complete pro-

^^tion and security for their commerce, but subject always to the laws

^^d statutes of the two countries, respectively.

***Abtiole 2. No higher or other duty shall be imposed on the impor-
^tion into the United States of any articles, the growth, pioAwe^, ot

421

^ 369.] CONTRABAND. [CHAP. XE

manafactore of His Britannic Majesty's territories in Earope, <ftnd i
higher or other duties shall be imposed on the importation into the tc
ritories of His Britannic Majesty in Europe of any articles, the growt
produce, or manufacture of the United State?, than are or shall be pa
able on the like articles, being the growth, produce, or manufacture
any other foreign country; nor shall any higher op other duties
charges be imposed in either of the two countries on the exportation
any articles to the United States, or to His Britannic Majesty's ten
tories in Europe, respectively, than such as are payable on the export
tion of the like articles to any foreign country. Nor shall any prohil
tion be imposed on the exportation or importation of any articles, tl
growth, produce, or manufacture of the United States, or of His Bi
tannic Majesty's territories in Europe, to or from the said territories
His Britannic Majesty in Europe, or to or from the said United Stat<
which shall not equally extend to all other nations.'

^^ By enactments of the legislatures of the two countries, the Britii
colonies are brought within the effect of the stipulations in these co
ventions.

<^ Having thus, as far as possible, established the standard by whi<
the proceedings complained of are to be tried, the undersigned proceed
to examine those proceedings themselves.

'' On the 20th of May, 1862, the Congress of the United States enact<
a law, the first three sections of which are as follows :

" ' Section 1. That the Secretary of the Treasury, in addition to t"
powers conferred upon him by the act of the 13th of July, 1861, be, ai
he is hereby, authorized to refuse a clearance to any vessel or otb
vehicle, laden with goods, wares, or merchandise, destined for a forel;
or domestic port, whenev^ir he shall have satisfactory reasons to belie
that such goods, wares, or merchandise, or any part thereof, whate^
may be their ostensible destination, are intended for ports or places
X>osses8ion or under control cf insurgents against the United Stat€
and if any vessel or other vehicle, for which a clearance or permit sb<
have been refused by the Secretary of the Treasury, or by his order
aforesaid, shall depart or attempt to depart for a foreign or domesi
port without being duly cleared or permitted, such vessel or other ^
hide, with her tackle, apparel, furniture, and cargo, shall be forfeit
to the United States.

'* ' Sec. 2. That whenever a permit or clearance is granted for eitli
a foreign or domestic port it shall be lawful for the collector, if he dee
it necessary under the circumstances of the case, fo require a bond
be executed by the master or the owner c f the vessel in a penalty e^o^
to the value of the cargo, and with sureties to the satisfoction of s^i
collector that the said cargo shall be delivered at the destination ^
which it is cleared or permitted, and that no part thereof shall be nse*
in affording aid or comfort to any person or parties in insurrection
againat the authority of the United States.

422

€HAP. XIX.J MUNITIONS OF WAR: COAL. [§ 369.

'^ ^ Seo. 3. That the Secretary of the Treasury be, and he ia hereby/
further empowered to prohibit and prevent the transportatioi^ on any
Teasel, or npon any raih*oad, turnpike, or other road or means of trans-
portation within the United States, of any goods, wares, or merchandise
of whatever character, and whatever may be the ostensible destination
of the same, in- all cases where there shall be satisfactory reason to be-
lieve that such goods, wares, or merchandise are intended for any place
in the possession or under the control of the insurgents against the
United States, or that there is imminent danger that such goods, wares,
or merchandise will fall into the possession or under the control of such
insurgents ; and he is further authorized, in all cases when he shall
deem it expedient so to do, to require reasonable security to be given that
the goods, wares, or merchandise, shall not be transported to any place
Quder the insurrectionary control, and shall not in any way be used to
give aid or comfort to such insurgents ; and he may establish all such
general or special regulations as may be necessary or proper to carry
into efFect the purposes of this act; and if any goods, wares, or mer-
chandise shall be transported in violation of this act, or of any regula-
tion of the Secretary of the Treasury established in pursuance thereof,
or if any attempt shall be made so to transport, then all goods, wares,
aad merchandise so transported or attempted to be transported shall
be forfeited to the United States.'

'^After considering the arguments of Mr. Stuart in the most careful
nianner, it is not apparent to the undersigned that they invalidate the
act of Congress, the substance of which has been recited. By the law
of nations every State is sovereign over its own citizens and strangers
^ding within its limits, its own productions and fabrics, and its own
porta and waters, and its highways, and, generally, within all its proper
territories. It has a right to maintain that sovereignty against sedi-
^on and insurrection by civil preventives and penalties and armed
^orce, and it has a right to interdict and prohibit, within its own bound-
aries, exportation of its productions and fabrics and the supplying of
^itors, in arms against itself, with material and munitions, and any
other form of aid and comfort. It has a right, within its own territo-
^% to employ all the means necessary to make these prohibitions ef-
f<^tiTe. It does not appear to the undersigned that the United States
have sarrendered this right by the convention between themselves and
^reat Britain which has been recited. It is true that by the first arti-
cle of the convention of 1815 British merchants have liberty fully and
^ly to come with their ships and cargoes into the ports, rivers, and
places within the territories of the United States, and to be protected
'D their commerce there, but this right is expressly restricted to the
ports, rivers, and places only into which other foreigners are permitted
^ enter, and in which they are permitted to reside and trade, and they
^^0, moreover, expressly declared, while entering, residing, and trad-
%in such ports, rivers, and places, to be subject to the law^ aud. ^XaX-

423

§ 369.] CONTRABAND. [CHAP. XIX.

utes of the two conntiies. So, by the third article of the convention of
1815, it is stipulated that prohibitions shall not be imposed on the ex-
portation or importation of any articles the growth, prodnce, or manu-
factare of either country ; this stipulation, however, is not absolute, bat
only a stipulation that any such prohibition shall extend equally to all
other nations as well as Great Britain. The law of Congress seems to
be free from the special objections which are raised by Mr. Stuart. It
does not confine its prohibitions or its requirements to British vessels
trading between New York and the Bahamas, but applies them to all
vessels of all nations, including the United States, wherever trading,
whether with the Bahamas or with any other part of the world. The
prohibitions and requirements are not uncertain as to the authority
which prescribes them or the form of the prescription, but they are de-
clared and promulgated in solemn enactment by the Congress of the
United States. The conditions on which the prohibitions and require-
ments are suspended are not left to capricious suspicions or beliefe, but
they are dependeut on satisfactory evidence of ascertainable facts.
They involve no question of neutral rights, because no neutral has or
can have a right more than any citizen of the United States to do an
act within their exclusive jurisdiction which is prohibited by the
statutes and laws of the country. The act has nothing to do with the
blockade of the insurrectionary ports, because it confines its prohibi-
tions and requirements to transaetions occurring, and to persons resid-
ing or being, within the ports actually possessed by the United States,
and under their undisputed protection and control.

"Having thus vindicated the act of Congress underwhich the pro-
ceedings of which Mr. Stuart has coibplained are supposed to have oc-
curred, the undersigned will next examine the manner in which theaet^
has been directed by the Secretary of the Treasury to be executed.

"On the I4th of April, 1862, before the act of Congress was passed^
it had been reported to the President that anthracite coal was being'
shipped from some of the ports of the United States to southern port»
within and to other southern ports without the United States for th9^
purpose of supplying fuel to piratical vessels which were engaged lift,
depredating on the national commerce on the high seas. The 2Secretar3r
of the Treasury, therefore, by authority of the President, who is chargedL
with the supreme duty of maintaining and executing the laws, issued,
to the collectors of the customs at Kew York and other ports the fol-
lowing instruction :

" ^ Clear no vessel with anthracite coal for foreign ports nor for hom&
ports south of Delaware Bay till otherwise instructed.'

" It was thereupon represented to the President that this order waB
unnecessarily stringent and severe upon general commerce, because il^
prohibited the exportation of coal to ports situated so far from the
haunts and harbors of the pirates that the article would not bear the
expense of transportation to such haunts and harbors, and therenpoo

424

CHAP. XDL] munitions OF WAB : COAL. [$ 369.

fhe Secietary of the Treasury, by the President's aathority, on the 18th
of May issued a new instruction on the subject, to the collectors of the
customs, which was of the effect following :

^^ ^The instructions of the 14th ultimo, concerning the prohibition of
the exportation of coals, are so far modified as to apply only to ports
north of Gape St. Boqne, on the eastern coast of South America, and
west of the fifteenth degree of longitude east. Goal may be cleared to
other foreign ports, as before, until further directed.'

^^ The subject of supplies of coal and other merchandise having, in
tlie mean time, engaged the attention of Gongress, with the result of
tbe passage of the law before mentioned, the Secretary of the Treasury,
oil the 23d of May last, and as speedily as possible after the approval
of the law, issued the following instruction to the collectors of the cus-
toms of the United States :

^^^ Until further instructed you will regard as contraband of war the

foUowiog articles, viz: Gannon, mortars, fire-arms, pistols, bombs,

grenades, firelocks, flints, matches, powder, saltpeter, balls, bullets,

pikes, swords, sulphur, helmets or boarding-caps, sword belts, saddles

^d bridles, always excepting the quantity of the said articles which

iDfty be necessary for the defense of the ship and of those who compose

the dew, cartridge-bag material, percussion and other caps, clothing

^ftpted for uniforms, rosin, sail-cloth of all kinds, hemp and cordage

ot^terial, ship lumber, tar and pitch, ardent spirits, military persons in

the service of the enemy, dispatches of the enemy, and articles of like

character with those specially enumerated. '

*^ ^Tou will also refuse clearances to all vessels which, whatever the

wtensible destination, are believed by you, on satisfactory grounds, to

^ intended for ports or places in possession or under the control of in-

^gents against the United States, or that there is imminent danger

^t the goods, wares, or merchandise, of whatsoever description, will

^^ into the possession or under the control of such insurgents. And

Ui all cases where, in your judgment, there is ground for apprehension

that any goods, wares, or merchandise shipped at your port will be used

^anyway for th^ aid of the insurgents or the insurrection, you will

^uire substantial security to be given that such goods, wares, or

Merchandise shall not in any way be used to give aid or comfort to such

*^urgents. You will be especially careful, upon applications for clear-

^<^) to require bonds with sufficient sureties for fulfilling faithfully

^^ the .conditions imposed by law or departmental regulations from

^"jppers of the following articles to the ports opened, or to any other

I^tg from which they may easily be and are probably intended to be

^hipped in aid of the existing insurrection, namely : liquors of all

^Ms, coals, iron, lead, copper, tin, brass, telegraph instruments, wire^

I^^nscnps, platinum, sulphuric acid, zinc, and all other telegraph ma-

^riata, marine engines, screw propellers, paddle-wheels, cylinders^

^kSy shafts, boilers, tubes for boilers, fire bars, and every arti^^l^

425

§ 369.] COHTBABAKD. [CHAP. ZD

whatever which is, can, or ma; become applicable for the maDofactoi
of marine machinery or for the armor of veeaels.*

" These are the Treasury regulations ander which the proceedings (
the collector at fTew York, which ore complained of by Mr. Stnart, ai
BQpposed to have taken place. It is not apparent to the andcowgue
that these regolations in any way transcend the anthority conferre
upon the Secretary of the Treasury and upon the collectors of the Unite
States by the before-reoited act of Congress. Kor is it apparent tbi
they are more obnotious than that act itself is to the objections whic
have been raised by Mr. Stnart. They do not expressly, nor by any in
plication, discriminate against Great Britain, her colonies or dependei
cies, and in favor of any other nation, or even in favor of the Unite
States. They do not discriminate between British ports, British me:
chants, British vessels, or British merchandise, and the ports, merchant
and vessels of the United States or those of any other nation. Xk
inatrnctions leave nothing to the caprice of the collector as a snborc
nate officer, but they are explicit commercial regulations, prescribed I
the highest authority. The conditions on which prohibitions are
attach are to be ascertained upon satisfactory evidence, and for ti-
collector's exercise of power in applying them he is responsible to t.
head of the Department to which he belongs. The regnlations have :
connection whatever with the blockade, but they affect only persos
vessels, merchandise, ports, waters, and highways, exdnsively witb
the United States and within the territories which are iu the absolo
and unquestioned possession of the United States, and subject in fii
as well as in law to their authority. i

" Fully admitting the principle for which Mr. Stnart so earnestly a
tends, that all proceedings and even regulations and laws of the Dnl
States which affect foreign commerce must not discriminate to-
prejndice of Great Britain, the undersigned finds no adequate grof
for supposing that the principle is violated in these regulations. >
instructions issued ou the 14th of April and the 18th of May, prol
iug the exportation of coals to ports within geographical limits,?
leave freedom of export to the other one-half of the world, may at
furnish ground for exception. But the prohibition applies to all ^
iciin and all foreign merchant vessels and cargoes as well as to t|
Great Britain, and to all the states which are situated within .'
signed limits, as well as to British dependencies situated therein
understood to be an accepted maxim that no law reaches in ef
yond the point where the reasou of the law fails, especially if tU
extended should be productive of iujnries without object and ;
compensation or benefit. There is not the least reason to sup|
the insurgents of the United States could in any way derivi
irom the exportation of anthracite coal to Archangel, or to Q
or to Japan. Nor is it manifest that the British nation, its of
and vessels, do not, in common with other nations , their merof
126

CHAP. XIX.] MUNITIONS OF WAB: COAL. [§ 369.

vessels, derive benefits and advantages from the export permitted to all
ports of whatever nation beyond the limits assigned by the Secretary of
the Treasary. Nevertheless the President, desirons to remove all pos-
sible grounds for misconstr action, has directed that those instractions
shall be rescinded, so that the case will stand altogether upon the act
of Congress and the general instractions of the Treasary, which have
been recited.

^^ In regard to the special proceedings of the collector of the easterns
at New York, which are complained of, the information presented to the
nndersigned is vagae and ancertain. There is no satisfactory evidence
in the papers nnder consideration that he has in any case made a clear-
ance or exacted a bond which involved any infringement of the law of
Congress and the regulations of the Treasury. This Government will
^eerfuUy examine upon its merits any case of infringement which may
be presented to it, and will promptly render the redress which shall be
4ae, if the complaint shall be sustained; and it will farther instruct all
its collectors that, in performing their duties, they will be governed by
not merely the letter but the spirit of the regulations of the Treasury,
and of the act of Congress, so as to make no iiyurious or invidious dis-
4;rimination to the prejudice of Great Britain."

Mr. Seward, Sec. of State, to Mr. Staart, Oot. 3, 1862. MSS. Notes, Gr. Brit. ;
Dip. Corr., 1862. See 5 Am. Law Bey., 264. •

^^ The duties of neutrality by the law of nations cannot be either ex-
panded or contracted by national legislation. The United States, for
InstaDoe, may, in excessive caution, require from its citizens duties more
Rtringent than those imposed by the law of nations, but this, while it
may make them penally liable in their own land, does not by itself make
them or their Government extra- territorially liable for this action in dis-
obeying such local legislation. On the other hand, a Government can-
not diminish its liability for breach of neutrality by fixing a low statu-
ary standard.

* *^It is also to be observed that the fact that certain articles of com-
iQerce are contraband does not make it a breach of neutrality to export
them. There has not been since the organization of our Government,
^ Bnropean war in which, in full accordance with the rules of interna-
^onal law as accepted by the United States, munitions of war have not
l^n sent by American citizens to one or both of the belligerents, yet
It has never been doubted that these munitions of war, if seized by the
belligerent against whom they were to be used, could have been con-
demned as contraband.

^^The question, then, is whether furnishing to belligerents coal and life-
^keUs, which appear to have composed the cargo of one of the British
^^ssels which gave rise to this correspondence, is a breach of neatrality

^Mch the law of nations forbids.

427

§ 369.] CONTBABAND. [CHAP. XDC

^^ The question must be answered in the negative as to coal, and th<
same conclusion may be adopted with regard to life-shells, which an
said to be projectiles used in the bringing to shore or rescue of wrecks

^^ Under these circumstances it is not perceived why in the presen:
case the United States authorities should intervene to prevent sucl
supply from being forwarded to the open ports of either belligerent
Even supposing such articles to be contraband of war and consequently
liable to be seized and confiscated by the offended belligerent, it is n<
breach of neutrality for a neutral to forward them to such belligeren
ports, subject, of course, to such risks. When, however, such article!
are forwarded directly to vessels-of-war in belligerent service, anothe
question arises. Provision and munitions of war sent to belligeren
cruisers are unquestionably contraband of war. Whether, however, i
is a breach of neutrality by the law of nations to forward them directly
to belligerent cruisers, depends so much upon extraneous circnmstancei
that the question can only be properly decided when these circum
stances are presented in detail."

Mr. Bayard, Seo. of State, to Mr. Smithers, Jnne 1, 1885. MSS. Inst., China

For. Rel., 1885.
As to exportation of coal as contraband, see Whart. Com. Am. Law, $ 253

Whart. Crim. Law (9th ed.), (( 1901 ff. As to depots of coal, see infra,,

398.

The following is taken from the proceedings of the Geneva tribun :
{infra, § 402a) :

It was maintained in the American case that the proofs showed tfi a
the insurgent cruisers were permitted to supply themselves with coal i
British ports in greater quantities and with greater freedom, and wi t
less restrictions than were imposed upon the United States } and it ^^
insisted that, in consequence of these facts, there was an absence *
neatrality, which made those ports bases of hostile operations agairs.
the United States under the second rule of the treaty.

On this point the award says that —

In order to impart to any supplies of coal a character inconsistent with the secoi
rnle, prohibiting the use of neutral ports or waters as a base of naval operations fo3
belligerent, it is necessary that the said supplies should be connected with special <^-
cumstances of time, of persons, or of place, which may combine to give them scs>
character.

It does not appear by the terms of the award that Great Britaiim
held responsible ror the acts of any vessel solel^^ in consequence of ill
gal supplies of coal. The question is, therefore, a speculative one,
far as relates to this controversy. The opinions of the four arbitral *:>
who signed the award furnish, however, the explanation of what tt^*
mean when they speak of ^' special circumstances of time, of per8ons<y <
of place."

Mr. Adams says :

I perceive no other way to determine the degree of responsibility of a nentratl ^
these cases, than by an examination of the evidence to show the intent of the ^i^'
in any specific case. Fraud or falsehood in such a case* poisons everything it toucbei
Even indifference may degenerate into willfhl negligence, and that will impost '
bnrden of proof to relieve it before responsibility can be relieved.

428

OfiAP. XIX.] COAL : PKOYISIONS. [§ 370.

Count Sclopis says:

1 will not say that the aimple fact of having allowed a greater amount of coal than

3V^ necessary to enable a vessel to reach the nearest port of its country constitutes in

^-^jsclf a sufficient grievance to call for an indemnity. As the lord chancellor of £ng-

Iflkjad said on the 12th of June, 1871, iu the House of Lords, England and the United

S^Ates equally hold the principle that it is no violation of the law of nations to fur-

tcx^^ arms to a belligerent. But if an excessive supply of coal is connected with other

c Ijrcumstances which show that it was used as a veritable res hostilis, then there is an

£:xx:fokction of the second article of the treaty. • * * Thus, for example, when I see

Florida and the Shenandoah choose for their fields of action, the ope the stretch

aea between the Bahama Archipelago and Bermuda, to cruise there at its ease, and

t^lB.« other Melbourne and Hobson's Bay for the purpose, immediately carried out, of

^oing to the Arctic Seas, there to attack the whaling vessels, I cannot but regard the

»xB.])plies of coal in quantities sufficient for such services infraction of the second rule

or Article YL

Mr. Stampfli says of the Samter:

The permission given to the Sumter to remain and to take in coal at Trinidad does

zftot of itself constitute a sufficient basis for accusing the British authorities of having

Called in their duties as neutrals, because the fact cannot be considered by itself, since

Xlie Sumter both before and after that time was admitted into the ports of many other

■tates, where it staid and took in coal, * * * so that it cannot be held that the

port of Trinidad served as a base of operations.

lo the Franco-German war of 1870^ Prince Bismarck earnestly remon-
strated with Great Britain for permitting the export of gobI to Prance.
This remonstrance, however, was ineffectual. " When Prussia was in
^he same x>08ition as that in which Great Britain then found herself,
^er line of conduct was similar, and she found herself equally unable to
enforce upon her subjects stringent obligations against the exportation
^ven of unquestionable munitions of war. During the Crimean war,
*nns and munitions were freely exported from Prussia to Russia, and
*i^8 of Belgian manufacture found their way to the same quarter
^^ngh Prussian territory, in spite of a decree issued by the Prussian
^vemment, prohibiting the transport of arms coming from foreign
«Ute8»

2HaUeok's Int» Law. (Baker's ed.)>2o8,note. France took the ground that
coal ^aa not contraband ; ibid-f 260.

Keatral duties as to allowing belligerents to receive supplies of coal are dis-
cussed infra, $$ 398/1 ; Whart. Com. Am. Law, (( 226, 241.

^t is certainly no breech of neutrality to sell coal for use on a bellig-
^nt steamer visiting the port of sale casually under stress of weather,
^^t it would plainly be a breach of neutrality to establish a coaling
^^Pot to supply all steamers of any particular belligerent.

Whart. Com. Am. Law, ( 226. Infra, $ 39S.

(2) As TO PBOVISIOKS.

§370,

** In one of your letters of March 13, you express your apprehensions
^ some of the belligerent powers may stop our vessels going with
C^to the ports of their enemies^ and ask instructions which may

429

§ 370.] CONTRABAND. [CHAP. XE

meet the qaestion in various points of view, intending, however, in tl
mean time to contend for the amplest freedom of neatral nations. Yoi
intention in this is perfectly proper, and coincides with the ideas of oi
own Government in the particular case you put, as in general case
Such a stoppage to an nnblockaded port would be so unequivocal a
infringement of the neutral rights, that we cannot conceive it will I
attempted. With respect to our conduct as a neutral nation, it :
marked out in our treaties with France and Holland, two of the belli^
erent powers ; and as the duties of neutrality require an equal condn<
to both parties, we should, on that ground, act on the same principle
towards Great Britain. We presume that this would be satisfactory t
her, because of its equality ^ and because she too has sanctioned the sani
principles in her treaty with France. Even our 17th article with France
which must be disagreeable, as from its nature it is unequal, is adopte<
exactly, by Great Britain in her 40th article with the same power ; an
would have laid her, in a like case, under the same unequal obligatioi
against us. We wish then that it could be arranged with Great Bri
ain that our treaties with France and Holland, and that of France an
Great Britain (which agree in what respects neutral nations) shouldfon
the line of conduct for us all, in the present war, in the cases for whic
they provide. Where they are silent, the general principles of the la^
of nations must give the rule. I mean the principles of that law as the
have been liberalized in latter times by the refinement of manners an
morals, and evidenced by the declarations, stipulations, and practice i
every civilized nation. In our treaty with Prussia indeed we have goi
ahead of other nations in doing away restraints on the commerce
peaceful nations, by declaring' that nothing shall be contraband, forj
truth, in the present improved state of the arts, when every country }
such ample means of procuring anns within and without itself, the if
ulations of contraband answer no other end than to draw other natf
into the war. However, as nations have not given sanction to this
provement, we claim it, at present, with Prussia alone." i

Mr. Jeffenon, Seo. of State, to Mr. Pinckney, May 7, 1793. M8S. Inst., Minf

<' Beason and usage have established that when two nations i
war, those who choose to live in peace retain their natural rig
pursue their agriculture, manufactures, and other ordinary voof
to carry the produce of their industry for exchange to all natioof
ligerent or neutral, as usual, to go and come freely without inqil
molestation, and in short, that the war among others shall be for
as if it did not exist. One restriction on their natural rights hi
submitted to by nations at peace, that is to say, that of not fuif
to either party implements merely of war for the annoyance of th
nor anything whatever to a place blockaded by its enemy. WW
implements of war are, has been so often agreed and is so wef
stood, as to leave little question about them at this day. Tt

430

CHAP. ilX,] FBOVISIONS. [§ 370.

not eziBt perhaps a nation, in our common hemisphere, which has not
made a particolar enumeration of them in some or all of their treaties,
onder the name of contraband. It suffices for the present occasion to
say that com, flour, and meal are not of the class of contraband, and
consequently remain articles of free commerce. A culture which, like
that of the soil, gives employment to such a proportion of mankind,
oould never be suspended by the whole earth, or interrupted for them^
i9vhenever any two nations should think it proper to go to war.

^* The state of war, then, existing between Great Britain and France,.

:fiimi8he8 no legitimate right to either to interrupt the agriculture of

tiie United States or the peaceable exchange of its produce with all na-

-taons ; and consequently the assumption of it will be as lawful hereaf-

-C^r as now, in peace as in war. No ground, acknowledged by the com-

-mnou reason of mankind, authorizes this act now, and unacknowledged

^^round may be taken at any time and all times. We see, then, a prac- '

-tice begun to which no time, no circumstances, prescribe any limits, and

^^hich strikes at the root of our agriculture, that branch of industry

hich gives food, clothing, and comfort to the great mass of the inhab-

tants of these States. If any nation whatever has a right to shut up,

our produce, all the ports of the earth except her own and those of

l^er friends, she may shut up these also, and so confine us within our

^^wvL limits. No nation can subscribe to such pretensions ; no nation

^?an agree, at the mere will or interest of another, to have its peaceable

S.xidQstry suspended and its citizens reduced to idleness and want. The

:&c»8 of our produce, if destined for foreign markets, or that loss which

^^oald result from an arbitrary restraint of our markets, is a tax too se»

:rioiiB for us to acquiesce in. It is not enough for a nation to say we

indoor friends will buy your produce. We have a right to answer that

xt; suits us better to sell to their enemies as well as their friends. Our

Bhipg do not go to France to return empty. They go to exchange the

snrploi of one produce which we can spare for surpluses of other kinds

^Mcb they can spare and we want ; which they can furnish on better

terms and more to our mind than Great Britain or her friends. We

have a right to judge for ourselves what market best suits us, and they

^<^ve none to forbid us the enjoyment of the necessaries and comforts

^ \ ^Uch we may obtain from any other independent country."

Same to Bame, Sept. 7, 1793 ; UHd. 1 Wait's St. Psp., 393. See Mr. Jefferson Uy
Mr. Hammond, Sept. 22, 1793; ifrtd., 399. Mr. Jefferson to minister firom France,
Not. 30, 1793. 4 Jeff. Works, 84. Bir. Pinckney to Lord Qrenyille, Jan. 2U,
1794. 1 Am. St. Pap. (For. Rel), 240, 448.

*^ If, by a circuit of construction, food can be universally ranked among

^1 military engines, what article, to which human comfort of any kind

^ be traced, is not to be registered as contraband t In some peculiar

<^uiD8tances it must be confessed com, meal, and flour are so ; as in

[ gp I * Woekade, siege, or investment There the exclusion of them directly

^4 431

« rv

:4^

$ 370.] CONTBABAND. [CHAP. XIX

and obvioasly goes to the redaction of the place; but neutral commerce
is, in this instance, iufriuged only where the Qxclusion, if continued
without intermission, wonld be decisive in its effect.''

Mr. Randolph; 8eo. of State, to Mr. Hammond, May 1, 17d4. 1 Am. St. Pap.
(For. Rel.;, 4r>0. See 4 Lodge's Hamilton, 304 ; 5 ihid,, 253.

<< Before the treaty with Great Britain her cruisers captured neutral
vessels bound to France with provisions. She asserted that in certain
cases provisions were contraband of war, c*x)n8equently that she might
lawfuUy capture and confiscate such provisions. We opposed the prin-
ciple and the practice. Britain insisted on her right. In this dilemma
it was agreed by the treaty that whenever provisions becoming contra-
band by the law of nations should be captured, they should be paid foi
with a reasonable mercantile profit. This stipulation, without admit
ting the principle, by securing the American merchants from loss in
case of capture, would certainly tend to promote rather than to discour-
age adventures in provisions to France."

Mr. Pickering, Sec. of State, to Mr. Pinckney, Jan. 16, 1797. MS8. Inst., Min-
isters.

<^ Certain provisions are not allowed, by the consent of nations, to b<
contraband but where everything is so, as in the case of a blockaded
town, with which all intercourse is forbidden."

Mr. Jefferson to Mr. Everett, Feb. 24, 1823. 7 Jeff. V^o^u, 270. See 7 Am. Lan
Bey.. 456.

^<As a means of annoyance, this international prohibition against car-
rying to a country engaged in hostilities articles useful for military par-
poses is practically of little valne to its enemy. It found its way
into the code of nations when the means of sapply were much more
restricted than at present, and before the progress of improvement had
placed it in the power of almost every nation to provide itself with what-
ever it may want, either for offensive or defensive operations. • • •

<< There is no accepted enumeration of the articles coming within the
prohibition. And to add to the dangers of collision, the principle by
which they are to be tested is so loosely defined that it is practically
of little use, but to furnish a pretext when one is wanting, to enable
parties at war to enlarge the contraband list at their pleasure. Some of
the later and approved writers upon the law of nations, as Hautefeuille
and Ortolan, object to this power of extension ad libitum^ and the former
particularly confines the list to objects of first necessity for war, and
which are exclusively useful in its prosecution, and which can be directly
employed for that purpose without undergoing any change— that is to
say, to arms and munitions of war."

Mr. Cass, Sec. of State, to Mr. Mason, Jane 27, 1859. M8S. Inst., France.

'^ I have followed with peculiar interest the European discussion relat-
ing to the French declaration making rice contraband of war.

432

CHAP. XIX.] PROVISIONS. [§ 370.

"The greater iiamber of the European powers, so far as I liave ob-
served, have failed to avow their position on this question. England,
however, found her navigation and commercial interests so much in-
volved that her Government appears to have protested against the
doctrine. At the risk of duplicating the information already on the files
of the Department, I inclose herewith a printed summary of the Anglo-
French views of the question, deeming it worthy of preservation in the
files of important international questions.

"Bat more especially I beg your attention to the importance of the
principle involved in this declaration, as it concerns our American in-
terests. We are neutrals in European wars. Food constitutes an im-
mense portion of our exports. Every European war produces an in-
creased demand for these supplies from neutral countries. The French
doctrine declares them contraband, not only when destined directly for
military consumption, but when going in the ordinary course of trade
as food for the civil population of the belligerent Government. If food
can be thus excluded and captured, still more can clothing, the instru-
ments of industry, and all less vital supplies be cut off on the ground
that they tend to support the efforts of the belligerent nation. Indeed,
the real principle involved goes to this extent, that everything the want
of which will increase the distress of the civil population of the bellig-
erent country may be declared contraband of war. The entire trade of
neutrals with belligerents may thus be destroyed, irrespective of an
effective blockade of ports. War itself would become more fatal to
neutral states than to belligerent interests.

^^ The rule of feudal times, the starvation of beleaguered and fortified

towns, might be extended to an entire population of an open country.

It is a return to barbaric habits of war. It might equally be claimed

that all the peaceful men of arms-bearing age could be deported, be-

<^Qse otherwise they might be added to the military forces of the coun-
try.

The United States and other countries have hitherto refused to rec-
opize coal as contraband of war, indispensable as it is to the equip-
iQ6Dtof war steam cruisers, because its chief use is for peacefuU objects.
Bat this French doctrine goes far beyond that.

"Although the Franco-Chinese war is ended, there is always danger
that this precedent will be again adopted in the heat of another war,
wnless resisted by energetic protests in the interests of neutral trade
and of humanity, itself. Its adoption indeed would practically nullify
the advantages of neutrals intended to be secured by the Paris declara-
tions of 185(5."

Mr. Kasson, minister at Berlin, to Mr. Bayard, Sec. of State, Apr. 23, 1885.
MSS. Dispatches, Germ., For. Bel., 1885.

Provisions sent to a belligerent are not, in general, deemed contra-
^Dd; but they may become so, although the property of a neutral, on
account of the particular situation of the war, or on account of their
destjnation. If destined for the ordinary use of life in the enemy's
country, they are not, in general, contraband; but it is otherwise if
destmed for military use. Hence, if destined for the army or navy of
the enemy, or for his ports of naval or military equipment, they are
deemed contraband. Another exception from being treated as contra-
l>and is, where the provisions are the growth of the neutral exporting

8. Mis. 162— VOL. ni 28 433

§ 371.] CONTBABAND. [CHAP. XE

country. But if they be the growth of the enemy's country, and moi
especially if the property of his subjects, and destined for enemy's u»
there does not seem any good reason for the exemption ; for, as S:
William Scott has observed, in such a case the party has not only gos
out of his way for the supply of the enemy, but he has assisted him b
taking off his surplus commodities.

The Commercen, 1 Wheat., 382.

Provisions may become contraband of war when destined to a port i
naval equipment of an enemy, and a fortiorij when destined for tt
supply of his army.

Maisonnaire v. Keating, 2 Gallison, 325.

(3) As TO MONET.

§ 371.

Money sent a belligerent country for payment of debts or purchase
goods is not to be regarded as contraband of war. It is otherwise wti.
forwarded to assist belligerent operations.

See %t\fra, $ 390.

^^ While it may be conceded that the cases to which you refer as <]
ciding that even provisions bound to an enemy's port may, in peculi
circumstances, be regarded as contraband, are founded in correct priiK
pies, I have not yet succeeded In finding a case in which paper mone:
intended for a foreign Government, has been seized or condemned a
contraband."

Mr. Blaine, Sec. of State, to Mr. Martinez, Jane 3, 18dl. MSS. Notes, Chili.

*' Yov seek to justify the seizure on the ground that money, or it^
representative, may, under special circumstances, be regarded as con-
traband of war, and consequently, that the seizure, in this case, was a
lawful one. You do not, however, specify the circumstances under
which money may be so regarded, nor do you refer to the text of the
law of nations or to the cases in prize courts where the doctrine has
been maintained. Diligent but fruitless search has here been made for
them. It is possible that the maritime courts of a belligerent may, i^
some instance, have so determined, but there^is not believed to be any
reported case of the kind.

Same to same. May 18, 1881 ; ibid.

Money, silver-plate, and bullion, when destined for hostile use or fot
the purchase of hostile supplies, being contraband of war, where a for-
eign vessel entered New Orleans under the license of the President's
proclamation of May 12, 1862, the determination of the question as t<
whether articles of this class, part of her outward-bound cargo, werecou
traband, devolved upon the Federal general commanding in that city

434

CHAP.XIX,3 MONEY: HORSES: MEECHANDI6E. [§§372,375.

BeiieTing them to be so, he was authorized to order them to be removed
from her, and her clearance to be withheld until his order should be
complied with.

U. S. 9. Diekehnan, 92 U. S., 520.

That it is not a breach of neutrality to permit subjects or citizens to lend money
to a belligerent^ see infra, $$ 388-390.

(4) As TO H0B8X8.
§372.

By the 24th article of the treaty with France of 1778, << horses with
their furniture " were contraband.

1 Op., 61, Lee, 1796.

As between countries on the same continent, horses are usually
regarded as contraband, since, when they can be readily transported,
they form an important and peculiarly avculable contribution to military

strength.

HaU'sInt.Law,615.

(5) As TO msbchahdibb.

§ 373.

"If Mexico shall prescribe to us what merchandise we shall not sell
to French subjects, because it may be employed in military operations
^&mt Mexico, France must equidly be allowed to dictate to us what
merchandise we shall allow to be shipped to Mexico, because it might
^ belligerently used against France. Every other nation which is at
^ar woold have a similar right, and every other commercial nation
^ould be bound to respect it as much as the United States. Commerce
^that case, instead of being free or independent, would exist only at
tke caprice of war.''

Hr. Seward, Seo. of State, to Mr. Romero, Deo. 15, 1862. M8S. Notes, Mez.

Citizens of the United States have, by the law of nations and by treaty,
the right to carry to the enemies of Spain, whether insurgents or foreign
^^) all merchandise not contraband of war, subject only to the require-
ments of legal blockade. ^^Articles contraband of war, when destined
&rthe enemies of Spain, are liable to seizure on the high seas, but the
^f[ht of seizure is limited to such articles only, and no claims for its
tension to other merchandise, or to persons not in the civil, military,
or naval service of the enemies of Spain, will be acquiesced in by the
United States. This Government certainly cannot assent to the puuish-
Dientby Spanish authorities of any citizen of the United States for the
^iercise of a privilege to which he may be entitled under public laws
^i treaties.''

Mr. Fish, Sec. of State, to Mr. Roberts, Apr. 3, 18G9. MSS. Notes, Spain.

435

§ 373.] ' CONTRABAND. [CHAP, XE

In Dana's !N'otes to Wbeaton we have the following summary:
** Of the continental writers, Hautefeuille contends for the absolul
rule limiting contraband to such articles as are in their nature of iin
necessity for war, substantially exclusively military in their use, an
80 made up as to be capable of direct and immediate use iu war. (Ti
8, § 2, tom. ii, 84, 101, 154, 412; torn, iii, 222.) Ortolan is of th
same opinion, in principle, and contends that all modern treaties lim;
the application of contraband to articles directly and solely applicabl
to war; yet he admits that certaiu articles not actually munitions (
war, but whose usefulness is chiefly in war, may, under circumstance)
be contraband; as sulphur, saltpeter, marine steam machinery, etc
but coal, he contends, from its general necessity, is always free. (Ton
ii, ch. vi, 179-206.) Mass6 (Droit Oomm., i, 209-211), admits that the ci
«umstances may determine whether articles doubtful in their natoj
are contraband in the particular case, as the character of the port
destination, the quantity of goods, and the necessities and character
the war. The same view is taken by Tetens, a Swedish writer (Sur 1
droits reciprogues, 111-113). Hubner (lib. ii, ch. i, §§ 8, 9), seems to 1
of the same opinion with Tetens and Mass^. Kltiber (§ 288) says th^
naval stores are not contraband, but adds, that in case of doubt as i
the quality of particular articles, the presumption should be in favors
the freedom of trade.
*** The subject is not aflfected by the declaration of Paris, of 1856."

Dana's Wbeaton, G29, note 2^.

TThe English courts treat as goods absolutely contraband ammnni
tion and materials for ammunition ; military and naval equipments anc
stores (Charlotte, 6 0. Bob., 306); hemp, cordage, and other materials
for fitting up shipping (Neptnnus, 3 0. Bob., 329; 6 0. Rob. 408); aad
steam engines and machinery for steamers (Lushingtou, Prize Law, §^
169-172).

It has also been ruled that printing presses, materials, and paper*
and postage stamps, belonging to the enemy, and intended for its im-
mediate use, are contraband. (The Bermuda, 3 Wall. 514, 552.)

'^^ The doctrine of occasional contraband received itB widest exten^ofl
in the war of En^gland against revolutionary France. The British rep-
resentative to our Government claimed, in 1793 and 1794, that by tb^
law of nations all provisions were to be considered as contraband, ic
the case where the depriving the enemy of these supplies was one oi
the means employed to reduce him to reasonable terms of peace, an<3
that the actual situation of France was such as to lead to that mode ai
distressing her, inasmuch as she had armed almost the whole laboring
<5lass of the people for the purpose of commencing and supporting bos*
tilities against all the Governments of Europe. If a Government ha<j
armed nearly its whole laboring population the laws of political econ
omy would probably reduce it to weakness far sooner than the cruiser^
of its enemy would have that eflfect.''

Woolsey, Int. Law^ J 182.

That the contraband quality of merchandise depends npon its object, see 5 Ax»
Law Rev., 260. Supra, J 308.

According to Chief Justice Chase, contraband goods are divided int<
three classes. " Of these the first consists of articles manufactured, aa<

436

CHAP. XIX.3 merchandise: COTTON. [§ 373.

primarily and ordinarily used, for military purposes in time of war; the
second, of articles which may be and are used for purposes of war or
peace, according to circumstances ; and the third, of articles exclusively
Tised for peaceful purposes.

^^ Merchandise of the first class destined to a belligerent country, br
places occupied by the araiy or navy of a belligerent, is always contra-
band ; merchandise of the second class is contraband only when actu-
ally destined to the military or naval use of a belligerent; while mer-
chandise of the third class is not contraband at all, though liable to
seizure and condemnation for violation of blockade or siege."

The Peterboflf, 5 Wall., 58.

Artillery, harness, men's army bluchers, artillery boots, Government
Kgulation gray blankets, are of the first class.
im.

Contraband is liable to capture when destined to the hostile country
or to the actual military or naval use of the enemy (according to the
above rule), whether a violation of blockade be intended or net.

IbieL

"The following list is given by Mr. Godfrey Lushiugton, in hia
Manual of Naval Prize Law, viz:

"*6oo(?« absolutely contraband, — Arms of all kinds and machinery for
iDanafacturing arms. Ammunition and materials for ammunitiou, in-
clttdinglead, sulphate of potash, muriate of potash, chloride of potas-
sinm, chlorate of potash, and nitrate of silver, gunpowder and its ma-
terials, saltpeter, and brimstone; also, guncottou. Military equipments
SBd clothing; military stores; naval stores, such as masts (The Char-
lotte, 5 Rob., 305), spars, rudders, and ship-timber (TheTweudeBrodre^
^Kob., 33), hemp (The Apollo, 4 Eob., 168), and cordage, sailcloth,
(The Keptunus, 3 Eob., 108), pitch and tar (The Jonge Tobias, 1 Eob.,
^), copper fit for sheathing vessels (The Charlotte, 6 Eob., 275) ;
fiJarine engines, and the component parts thereof, including screw pro-
P^Uers, paddle-wheels, cylinders, cranks, shafts, boilers, tubes for boilers,
^ilerplates, and fire bars, marine cement, and the materials used in
^^manufacture thereof, as blue lias and Portland cement; iron in any
^^ the following forms : anchors, rivet iron, angle iron, round bars of f
I^^Jof an inch diameter, rivets, strips of iron, sheet-plate iron exceed-
^g^of an inch, and low moor and bowling plates.'"

SHalleck's Int. Law (Baker's ed.), 260,261.

"In order to constitute contraband of war, it is absolutely essential
^&t two elements should concur, viz, a hostile quality and a hostile
^^tiaation. If either of these elements is wanting, there can be no
^^ch thing as contraband. Innocent goods going to a belligerent port
^not contraband. Here there is a hostile destination, but no hostile
^IQality. Hostile goods, such as munitions of war, going to a neutral
^ft, are not contraband. Here there is a hostile quality, but no hostile
destination."

RUtoricas, 191.

As to effect of treaties, see App., Vol. Ill, J 370.

437

§ 373a.] CONTRABAND. [CHAP. XIX

That each case is to be determined by the test of fitness for belliger
ent purposes, see 5 Am. Law Eev., 258, citing the Peterhbff, 5 Wall.
28, where it was held that ^'blankets, boots, and other articles, which
from the marks on the cases and from their own appearance were evi
dently intended for the use of the Confederate forces were confiscable,'

Cotton was contraband of war, daring the late civil war, when it wa?
the basis on which the belligerent operations of the Coufedera<sy rested

House Rep. 262, 43d Cong., Ist sess. Mrs. Alexander's cotton, 2 Wall., 404
cited BuprUf $ 352. See as to seizure of aliens' cotton, eupra, $$ 203, 224, 228
343, 352.

«< Cotton was nsefal as collateral security for loans negotiated abroac
by the Confederate States Government, or, as in the present ca^e, was sok
by it for cash to meet current expenses, or to purchase arms and muni
tions of war. Its use for such purposes was publicly proclaimed by th*
Confederacy, and its sale interdicted, except under regulations estat
lished by, or contract with, the Confederate Government. Cotton wa
thus officially classed among war supplies, and as such, was liable ft
be destroyed, when found by the Federal troops, or turned to any u^
which the exigiencies of war might dictate. • • •

^'Cotton in fact was to the Confederacy as much munitions of war a
powder and ball, for it furnished the chief means of obtaining those is
dispensables of warfare. In international law, there could be no ques
tion as to the right of the Federal commanders to seize it as contraband
of war, whether they found it on rebel territory or intercepted it on the
way to the parties who were to furnish in return material aid in the
form of the sinews of war, arms, or general supplies.^

Mr. Bayard^ Sec. of State, to Mr. Muruaga, June 2S, 1886. MSS. Notes, Spain.
See 9«pra, $( 203, 224, 228, 343 ; App., Vol. Ill, J 373.

(6) As TO SOLDIERS.

§ 373a.

<^ It is important not to confound, as has sometimes been artfidly at*
tempted, the right of search with the pretended right of impressment-
In opposing this we do not contend against the right of search for pur-
poses in which we have, like other nations, acquiesced ; that is to saj,
80 far as relates to objects which we have admitted to be liable to capt-
ure and condemnation, such as enemies' property and contraband articles.
But we deny the right of capturing or taking out of neutral ships (and,
therefore, searching for) persons of any description whatever, with one
single exception," that of soldiers in service of the enemy provided for in
several treaties, • • • *< Yet, as all those treaties were with nations
that acknowledged the principle of ^ free ships free goods,' I am not ready
to assert that, with respect to Great Britain, since we admit that enemy's
property is liable to capture and condemnation, the exception ought
not to be to the same extent as respects persons, so as to admit that all
enemies may be taken out, although they be not soldiers, and in the
actual service of the enemies."

Mr. Gallatin to Mr. Everett, Aug. 9, 1828. 2 Gallatin's Writings, 404.

438

CHAP. XIX.3 SOLDIERS. [§ 373a.

^inconsequence of instrnctioDS from the American Government, I
called at the foreign office a few days ago, to represent to jour lordeliip
tbe conduct of Captain May, of the British mail steamer Teviot, who,
unmindful of his duty as a neutral, and using improperly the extraordi-
nary privileges which the American Government has granted to British
mail steamers ever since the commencement of the present war with
Mexico, in the month of August last, brought from the Havana to Vera
Gmzj General Paredes, late President of Mexico, the author of the war
of Mexico against the United States, and their avowed and embittered
enemy.

^^ By the principles of British law, according to the opinion of Sir
William Scott (6 Hobinson's Reports, 430) Captain May has rendered
the Teviot liable to confiscation. Or the President of the United States
might elSectually prevent similar aid to the enemy by withdrawing from
these steamers the privilege of entering the i>ort of Vera Cruz. But I
am confident Her Majesty's Government will render such steps unneces-
^ by adopting efficient means to prevent, for the future, such viola-
tions of their neutrality.

^* If Captain May or any of his officers implicated in this serious charge
^ ofiScers in the British service, I feel bound to ask for their dismissal
or punishment in such other way as may clearly manifest that the British
Covemment has disapproved their conduct

Mr. Bancroft, U. S. minister at London, to Lord Palmenton, Oct. 8, 1847. ySS.
Dispatches, 6r. Brit.

''In answer to your letter of the 8th instant, complaining of the con-
doct of Captain May, of the British mail steamer Teviot^ in having con-
veyed General Paredes from the Havana to Vera Cruz, i have the honor
to state to you that the lords commissioners of the admiralty, having
investigated the circumstances of this affair. Her Majesty's Government
liave informed the directors of the Boyal Mail Steam Packet Company,
to whom the steamer Teviot belongs, that the directors are bound to
testify, in a marked manner, their disapproval of Captain May's con-
tact in having thus abused the indulgence afforded to the company's
vessels by the Government of the United States ; and the directors of
the company have accordingly stated to Her Majesty's Government that
tbey wiU immediately suspend Captain May from his command ; and
that tbey publicly and distinctly condemn any act on the part of their
officers which may be regarded as a breach of faith towards the Gov-
ernment of the United States, or as an infringement or invasion of the
i^gQlations established by the United States offtcers in those ports of
Mexico which are occupied by the forces of the United States."

Lord Palmerston to Bir. Bancroft, Nor. 16, 1847. MSS. Dispatches, Gr. Brit.

Iq an article by Mr. Horatio King on the <^ Trent affia>ir,"in the Maga-
zine of American History for March, X886, vol. xv, 278, it is stated that
** daring the Mexican war G^eneral Paredes, a bitter enemy of the United
States, who was arrested in 1 846, at tl^ beginning of the war, and being
w Europe, was brought to Vera Cruz on the 14th of Augast, 1847, in the
British mail steamer Teviot. Secretary Buchanan made complaint in
* letter to Mr. Bancroft, our minister to England, saving: 'A neutral
vessel which carries a Mexican oflftcer of high military rank to Mexico
^orthe purpose of taking part in hostilities to our country is liable to con-
fiscation, according to Sir William Scott.'"

See 5 Am. Law. Rev., 267.

439

§ 374.] CONTRABAND. [CHAP. X

ni. HOW FAB DISPATCHES AND DIPLOMATIC AGENTS ARE CONT

BAND,

% 374.

Mr. Seward's letters and instructions in respect to the Trent afE
80 far as concerns the question of reference to a prize court, ate gi^
supra^ sections 325, 328. So far as concerns the question of the coni
band character of diplomatic dispatches and diplomatic agents, the
lowing papers are to be considered :

<^ In connection with the case of Messrs. Mason and Slidell, the \
partment has recently been engaged in examining that of M. Fauci
a minister from France during Washington's administration, w
while on his way to. embark at Newport, B. I., on his return home, pi
ably escaped seizure by the commander of the British ship Africa, n
that port, in consequence of the packet Peggy, in which he was i
ceeding from Few York to Newport, being compelled by stress
weather to put into Stonington, Conn. Here M. Fauchet received
timations of the intention of the commander of the Africa, which
duced him to proceed to Newport by land and across the ferr
WhAi the weather moderated the Peggy proceeded on her course, s
when she approached the Africa she was boarded from that vessel,
trunks of the passengers were searched, and disappointment showi
the absence of M. Fauchet. This act having been committed within 1
maritime jurisdiction of the United States, and the British vice-coDi
at Newport having been implicated in it, his exequatur was fonnai
revoked by President Washington and explanations demanded of t
British Government ; first through their minister here, and then tbrouj
Mr. John Quincy Adams, acting chargS d'affaires at London."

Mr. Seward, Sec. of State, to Mr. Adams, Dec. 16, 1861. MSS. Inst., Gr. Bi
The report of Mr. Seward, Sec. of State, Dec. 9, 1862, giving the docomenis
reject to the attempted seizure of M. Fanohet, French minister to t
United States, hy the commander of the British ship-of-war Africa,
1795, is printed in Senate Ex. Doc. 4, 37th Cong., 3d sesa.
For an account of the attempt of the captain of the British ship-of-war Airi
to seize M. Fauchet, the French minister to the United States, while in o
territorial waters, see 3 Life of Pickering, 231 ff.

"All writers and judges pronounce naval or military persons in t!
service of the enemy contraband. Yattel says war allows us to cat <
from an enemy all his resources, and to hinder him from sending mi
isters to solicit assistance. And Sir William Scott says you may Bt<
the ambassador of your enemy on his passage. Dispatches are d
less clearly contraband, and the bearers or couriers who undertake
carry them fall under the same condemnation.

"A subtlety might be raised whether pretended ministers of a asar
ing power, not recognized as legal by either the belligerent or the nc
tral, could be held to be contraband. But it would disappear on beii

440

CEL/LP. XIX.] DISPATCHES AND DIPLOMATISTS. [§374,

subjected to wbat is the trae test iu all cases — namely, the spirit of the
law. Sir William Scott, speaking of civil magistrates who are arrested
and detained as contraband, says :

^^ ^ It appears to me on principle to be but reasonable that when it is
of safficient importance to the enemy that such persons shall be sent
out on the public service at the public expense, it should afford equal
ground of forfeiture against the vessel that may be let out for a pur-
pose so intimately connected with the hostile operations.'"

Mr. Seward, Sec. of State, to Ix>rd Lyons, Dec. 26, 18C1. MSS. Not4>8, Gr. Brit.
See Mr. Seward, Sec. of State, to Lord Lyons, Jan. 13, 166:i. MSS. Notes, Gr.
Brit., Dip. Corr., 1862.

The following paper is here introduced as showing the position taken

by the British Government as to the doctrine of contraband iu this re-
lation:

JEarl Russell to Lord Lyons,

** Foreign Office, January 23, 1862.

'*My Lord: I mentioned in my dispatch of the 10th instant that Her
Majesty's Government differed from Mr. Seward in some of the conclu-
BioDs at which he had arrived, and that I should state to you, on a
futnre occasion, wherein these diflferences consisted. I now proceed to
^0 80. It is necessary to observe that I propose to discuss the questions
involved in this correspondence solely on the principles of international
law. Mr. Seward himself, speaking of the capture of the four gentle-
inen taken from on board the Trent, says: *The question before us is,
^bether this proceeding was authorized by, and conducted according
to, the law of nations.' This is, in fact, the nature of the question which
has been, but happily is no longer, at issue. It concerned the respect-
ive rights of belligerents and of neutrals. We must, therefore, discard
entirely from our minds the allegation that the captured persons were
^bels, and we must consider them only as enemies of the United States
at war with its Government, for that is the ground on which Mr. Sew-
Jrt ultimately places the discussion. It is the only ground upon which
foreign Governments can treat it.

"The first inquiry that arises, therefore, is, as Mr. Seward states it,
* Were the persons named and their sapposed dispatches contraband of
J^t' Upon this question Her Majesty's Government differ entirely
^ta Mr. Seward. The general right and duty of a neutral power to
jpaintain its own communications and friendly relations with both bel-
hferents cannot be disputed.

"*A neutral nation,"^ says Vattel (book iii, chap. 7, § 118), 'continues,
Jjth the two parties at war, in the several relations nature has placed
^tween nations. It is ready to- perform towards both of them all the
duties of humanity, reciprocally due from nation to nation.' In the
Mormance of these duti&, on both sides, the neutral nation has itself
a most direct and material interest, especially when it has. numerous
^tizens resident in the territories of both belligerents, and when its
?"2eii8, resident both there and at home, have property of great value
Sfv^^^ territories of the belligerents which may be exposed to danger
^^ acts of confiscation and violence, if the protection of their own
j'ovemment should be withheld. This is the case with respect to Brit-
^^ subjects during the present civil war in North. America.

441

§374.] CONTEABAND. [CHAP. 3

'^ Acting upon these principles, Sir William Scott, iu the case of
Caroline (Ohr. Bob., 461, cited and approved by Wheaton, Elemei
part iv, chap. 3, § 22), during the war between Great Britain i
France, decided that the carrying of dispatches from the French ami
sador resident In the United States to the Government of France bj
United States merchant ship was no violation of the neutrality of
United States iu the war between Great Britain and France, and t
such dispatches could not be treated as contraband of war. *The d
tral country,^ he said, *ha8 a right to preserve its relations with
enemy, and you are not at liberty to conclude that any commanicat
between them can partake, in any degree, of the nature of hosti
against you. The enemy may have his hostUe projects to be attemp
with the neutral state, but your reliance is on the integrity of that d
tral state, that it will not favor nor participate in such designs, but, as
as it9 own councils and actions are concerned, will oppose them. A
if there should be private reasons to suppose that this confidence in
good faith of the neutral state has a doubtful foundation, that is n
ter for the caution of the Government, to be counteracted by just m<
ures of preventive policy ; but it is no ground on which this court
pronounce that the neutral carrier has violated his duty by beai
dispatches, which, as far as he can know, may be presumed to be o1
innocent nature, and in the maintenance of a pacific connection.'

<^And he continues, shortly afterwards :

'^ ^It is to be considered, also, with regard to this question, what i
be due to the convenience of the neutral state, for its interests may
quire that the intercourse of corresx>ondence with the enemy's com
should not be altogether interdicted. It might be thought to amc
almost to a declaration that an ambassador from the enemy shall
reside in the neutral state, if he is declared to be debarred frt)m the <
means of communicating with his own ; for to what useful purpose
he reside there without the opportunities of such a communication t
is too much to say that all the business of the two states shall be tr]
acted by the minister of the neutral state resident in the enemy's c<
try. The practice of nations has allowed to neutral states the privil
of receiving ministers from the belligerent states, and the use and <
venience of an immediate negotiation with them.'

^^That these principles must necessarily extend to every kind of di
matic communication between Government and Government, whet
by sending or receiving ambassadors or commissioners personally, oi
sending or receiving dispatches from or to such ambassadors or comi
sioners, or from or to the respective Governments, is too plain to n
argument ; and it seems no less clear that such communications n
be as legitimate and innocent in their first commencement as afterwa
and that the rule cannot be restricted to the case in which diplom
relations are already formally established by the residence of an acc]
ited minister of the belligerent power in the neutral country. It is
neutrality of the one party to the communications, and not either
mode of the communication or the time when«it first takes place, wl
furnishes the test of the true application of the principle.

''The only distinction arising out of the peculiar circumstances <
civil war, and of the non-recognition of the independence of the de/
Government of one of the belligerents, either by the other belligei
or by the neutral power, is this: That 'for the purpose of avoiding
difficulties which might arise from a formal and positive solution of Si
questions diplomatic agents are frequently substituted, who are clotl

442

CHAP. XIX.] DIPLOMATISTS : TRENT CASE. [§ 374.

with the powers and enjoy the immunities of ministers, tboup^h they are
not invested with the representative character, nor entitled to diplo-
matic honors.* (Wheaton's Elements, part iii, chap. 1, § 6.) Upon
this footing Messrs. Mason and Slidell, who are expressly stated by Mr.
Seward to have been sent as pretended ministers plenipotentiary from
the iSoathern States to the courts of St. James and of Paris, mast have
been sent, and would have been, if at all, received ; and the reception
of these gentlemen upon this footing could not have been justly regarded,
according to the law of aations, as a hostile or unfriendly act towards
the United States. Nor, indeed, is it clear that these gentlemen would
have been clothed with any powers, or have enjoyed any immunities
beyond those accorded to diplomatic agents not officially recognized.

"It appears to Her Majesty's Government to be a necessary and cer-
tain deduction from these principles that the conveyance of public
agents of this character from Havana to St. Thomas, on their way to
Great Britain and France, and of their credentials or dispatches (if any)
on board the Trint, was not and could not be a violation of the duties
of neutrality on the part of that vessel ; and, both for that reason and,
Also, because the destination of these xiersons and of their dispatches
was bona fide neutral, it is, in the judgment of Her Majesty's Govem-
flient, clear and certain that they were not contraband.

I^The doctrine of contraband has its whole foundation and origin in the
principle which is nowhere more accurately explained than in the fol-
lowing passage of Bynkershoek. After stating in general terms, the
^Qty of impartial neutrality, he adds : ^ Et sane id, quod modo dicebam,
^on tantum ratio docet, sed et usus, inter omnes fere gentes receptus.
Vnamvis enim libera sint cum amicorum nostrorum hostibus commercia,
^n tamen placuit, • • • ne alterutrum his rebus juvemus, quibus
^Uum contra amicos nostros instruatur et foveatur. Non licet igitur
^^terutri advehere ea, quibus in bello gerendo opus habet ; ut sunt tor-
JJ^uta, anna, et, quorum prsecipuus in bello usus, milites. • • •
^timo jure interdictum est, ne quid eorum hostibus subministremus ;
^^ia his rebus nos ipsi quodammodo videremur amicis nostris bellum
**cere.' (Bynkershoek, QusBSt. Jur. Publ., lib. i, chap. 9,)
. ^^The principle of contraband war is here clearly explained, and it is
^^Possible that men or dispatches which do not come within that prin-
<5ipl© can in this sense be contraband. The penalty of knowingly car-
ing contraband of war is, as Mr. Seward states, nothing less than the
^ufiscation of the ship ; but it is impossible that this penalty can be
^^cnrred when the neutral has done no more than employ means usual
^ODg nations for maintaining his own proper relations with one of the
^Uigerents. It is of the very essence of the definition of contraband
^liat the articles should have a hostile, and not a neutral destination.
*Cood8,' says Lord Stowell (The Imina, 3 Chr. Rob., 167), Agoing to
^ neutral port cannot come under the description of contraband, all
^<H)d8 going there being equally lawful. The rule respecting contra-
J^ands,' he adds, *as I have always understood it, is, that articles must
^e taken in delicto^ in the actual prosecution of the voyage to an enemy's
^rt.' On what just principle can it be contended that a hostile desti-
'^ation is less necessary, or a neutral destination more noxious, for con-
stituting a contraband character in the case of public agents or dispatches
^an in the case of arms and a^mmunition T Mr. Seward seeks to support
his conclusion on this point by a reference to the well-known dictum of
^ir William Scott in the case of the Caroline, that 'you may stop the
\ ^ttibafisador of your enemy on his passage' (The Carolina, C Chr. Bob.,

y 443

§ 374.] CONTRABAND. [CHAP. XEL

468), and to another dictum of the same judge in the case of the Oro-
zembo (The Orozembo, 6 Chr. Eob., 434), that civil functionaries, *if
sent for a purpose intimately connected with the hostile operations,^
may fall under the same rule with persons whose employment is directly
military.

"These quotations are, as it seems to Her Majesty's Government, irrel-
evant; the words of Sir W. Scott are in both cases applied by Mr,
Seward in a sense different from that in which they were used. Sir
William Scott does not say that an ambassador sent from a belligerent
to a neutral state may be stopped as contraband while on his passage
on board a neutral vessel belonging to that or any other neutral state^
nor that, if he be not contraband, the other belligerent would have any
right to stop him on such a voyage.

" The sole object which Sir William Scott had in view was to explain
the extent and limits of the doctrine of the inviolability of ambassadors
in virtue of that character; for he says :

" ^The limits that are assigned to the operations of wAr against them,
by Vattel and other writers upon these subjects, are, that you may ex-
ercise your right of war against them whenever the character of hostility
exists. You may stop the ambassador of your enemy on his passage ;
but when he has arrived, and has taken upon him the functions of his
of&ce, and has been admitted in his representative character, he becomes
a sort of middle man, entitled to peculiar privileges, as set apart for the
protection of the relations of amity and peace, in maintaining which all
nations are in some degree interested.'

" There is certainly nothing in this passage from which an inference
can be drawn so totally opposed to the general tenor of the whole judg-
ment as that an ambassador proceeding to the country to which he is
sent, and on board a neutral vessel belonging to that country, can be
stopped on the ground that the conveyance of such an ambassador is a
breach of neutrality, which it must be if he be contraband of war. Sir
William Scott is here expressing not his own opinion merely, but the
doctrine which he considers to have been laid down by writers of au-
thority upon the subject. Ko writer of authority has ever suggested
that an ambassador proceeding to a neutral state oi^ board one of its
merchant ships is contraband of war. The only writer named by Sir
William Scott is Vattel (Vattel, lib. iv, chap. 7, § 85), whose words
are these: 'On pent encore attaquer et arr6ter ses gens' {%. e., gens de
I'ennemi), < partout otL on a la liberty d'exercer des actes d'hostiUtl. Kon
seulement done on pent justement refuser le passage aux ministres
qti^un ennemi envoye ^ d'autres souverains ; les arr6te m^me, s'ils entre-
prennent de passer secr^tement et sans permission dans les lieux dont
on est maitre.'

'^And he adds, as an example, the seizure of a French ambassador
when passing through the dominions of Hanover during war between
England and France, by the King of England, who was also sovereign
of Hanover.

^^ The rule, therefore, to be collected from these authorities is, that you
may stop an enemy's ambassador in any place of which you are your-
self the master, or in any other place where you have a right to exer-
cise acts of hostility. Your own territory, or ships of your own coun-
try, are places of which you are yourself , the master. The enemy's
territory, or the enemy's ships, are places in which you have a right to
exercise acts of hostility. Keutral vessels guilty of no violation of the
laws of neutrality are places where you have no right to exercise acts
of hostility.

444

CHAP. XIX.] DIPLOMATISTS : TRENT CASE. [§374.

^^ It would be an inversion of the doctrine that ambassadors have pe-
'Caliar privileges to argne that they are less protected than other men.
The right conclusion is, that an ambassador sent to a neutral power is
inviolable on the high seas, as well as in neutral waters, while under the
protection of the neutral flag.

" The other doctrine of Sir William Scott, in the case of the Orozembo,
is even less pertinent to the present questioD. That related to the case
of a neutral ship which, upon the eflect of the evidence given on the
trial, was held by the court to have been engaged as an enemy's trans-
port to convey the enemy's military officers, and some of his civil offi-
cers whose duties were intimately connected with military operations,
from the enemy's country to one of the enemy's colonies which was
about to be the theater of those operations — the whole being done
under color of a simulated neutral destination. But as long as a neu-
tral Government, within whose territory no military operations are car-
ried on, adheres to its professions of neutrality, the duties of civil offi-
cers on a mission to that Government, and within its territory, cannot
possibly be ^connected with' any * military operations' in the sense
m which these words were used by Sir William Scott, as, indeed, is
rendered quite clear by the passages already cited from his own judg-
ment in the case of the Caroline. In connection with this part of the
subject, it is necessary to notice a remarkable passage in Mr. Seward's
note, in which he says: ^I assume, in the present case, what, as I
read British authorities, is regarded by Great Britain herself as true
maritime law, that the circumstance that the I'rent was proceeding from
a neutral port to another neutral port does not modify the right of bel-
ligerent capture.' If, indeed, the immediate and ostensible voyage of
the Trent had been to a neutral port, but her ultimate and real desti-
nation to some port of the enemy. Her Majesty's Government might
have been better able to understand the reference to British authorities
contained in this passage. It is undoubtedly the law as laid down by
British authorities, that if the real destination of the vessel be hostile
(that is, to the enemy, or the enemy's country), it cannot be covered
and rendered innocent by a fictitious destination to a neutral port.
But if tlie real terminus of the voyage be bona fide in a neutral terri-
tory, no English, nor, indeed, as Her Majesty's Government believe,
any American authority can be found which has ever given countenance
to the doctrine that either men or dispatches can be subject, during
such a voyage, and on board such a neutral vessel, to belligerent capt-
ure as contraband of war. Her Majest.v'8 Government regard such a
doctrine as wholly irreconcilable with the true principles of maritime
law, and certainly with those principles as they have been understood
in the courts of this country.

" It is to be further observed that packets engaged in the postal serv-
ice, and keeping up the regular and periodical communications between
tbe different countries of Europe and America, and other parts of the
^oild, though in the absence of treaty stipulations they may not be
exempted from visit and search in time of war, nor from the penalties
of any violation of neutrality, if proved to have been knowingly com-
mitted, are still, when sailing in the ordinary and innocent course of
^l^eir legitimate employment, which consists in the conveyance of mails
and passengers, entitled to peculiar favor and protection from all Gov-
^niments in whose service they are engaged. To detain, disturb, or in-
terfere with them, without the very gravest cause, would be an act of
^inoet noxious and injurious character, not only to a vast number and

445

§ 374.] CONTRABAND. [CHAP. XIX.

variety of individual and private interests', but to the public interests
of neutral and friendly Governments. It has been necessary to dwell
upon these points in some detail, because they involve principles of tho
highest importance, and because if Mr. Seward's arguments were acted
upon as sound the most injurious consequences might follow.

"For instance, in the present war, according to Mr. Seward^s doctrine^
any packet ship carrying a Confederate agent from Dover to Calais, or*
from Calais to Dover, might be captured and carried to New York. Ixx
case of a war between Austria and Italy, the conveyance of an Italian
minister or agent might cause the captuix) of a neutral packet plying
between Malta and Marseilles, or between Malta and Gibraltar, th.^^
condemnation of the ship at Trieste, and the confinement of the miia^
ister or agent in an Austrian prison. So in the late war betweexx
Great Britain and France on the one hand, and Bussia on the other, ^^
Russian minister going from Hamburg to Washington in an Amer-1^
can ship might have been brought to Portsmouth, the ship might hax*-^
been condemned, and the minister sent to the tower of London. SS
also a Confederate vessel-of-war might capture a Cunard steamer
its way from Halifax to Liverpool, on the ground of its carrying di^.
patches from Mr. Seward to Mr. Adams. In view, therefore, of t;he
erroneous principles asserted by Mr. Seward, and the consequences tl^e;y
involve. Her Majesty's Government think it necessary to declare tli&t
they would not acquiesce in the capture of any British merchant sliip
in circumstances similar to those of the Trent, and that the fact of
its being brought before a prize court, though it would alter ttie
character, would not diminish the gravity of the offense against 'tl^e
law of nations which would thereby be committed.

<' Having disposed of the question whether the persons named, aimd
their supposed dispatches, were contraband of war, I am relieved fro in
the necessity of discussing the other questions raised by Mr. SewaJnd,
namely, whether Captain Wilkes had lawfully a right to stop a^sid
search the Trent for these persons and their supposed di8patcbe^s;
whether that right, assuming that he possessed it, was exercised by 1^ ^^
in a lawful and proper manner ; and whether he had a right to capt^^i^re
the persons found on board.

" The fifth question put by Mr. Seward, namely, whether Capt^»i°
Wilkes exercised the alleged right of capture in the manner allowed £i>^<^
recognized by the law of nations, is resolved by Mr. Seward himself io
the negative. I cannot conclude, however, without noticing one x^^ry
singular passage in Mr. Seward's dispatch.

** Mr. Seward asserts that * if the safety of this Union required tbe ^^
tention of the captured persons it would be the right and dut^y of t:^'^
Government to detain them.' He proceeds to say that the waning pro-
portions of the insurrection, and the comparative unimportance of '^^^
captured persons themselves, forbid him from resorting to that defend-
Mr. Seward does not here assert any right founded on international I^^^
however inconvenient or irritating to neutral nations; he entirely l(y^^
sight of the vast diflference which exists between the exercise of aa *^-
treme right and the commission of an unquestionable \vTong. His frat^.^*
ness compels me to be equally open, and to inform him that Great Bri t:^'^
could not have submitted to the perpetration of that wrong, howo^^^
flourishing might have been the insurrection in the South, and how©'*^^''
important the persons captured might have been.

" Happily all danger of hostile collision on this subject has b^^
avoided. It is the earnest hope of Her Majesty's (jrovemment ti^^

446

CH-AP. XIX.] DIPLOMATISTS : TRENT CASE- [$ 374.

similar dangers, if they shoald arise, may be averted by peaceful nego-
ti^ktions conducted in the spirit which befits the organs of two great na-
tions.

^^I reqnest yon to read this dispatch to Mr. Seward, and give him a
copy of it.

^^ I am, &c.,

" EUSSBLL."

^'The Trent affair, all the world sees, was an accident for which not
tlie least responsibility rests upon this Government. For a time our
national pride and passion appealed to us to abandon an ancient liberal
policy; but, even though nnad vised, we did not listen to it, and we are
to-day, after that occurrence, as ready and as willing to join other mari-
time powers in meliorations of the law, to the extent that France desires,
as we were before it happened, and before the civil war commenced.
Forced into a belligerent attitude, and treated as such by neutral powers,
^e, of course, while these hostilities last, must claim for ourselves the
rigors which other maritime powers agree to apply to ns when we are
neutrals. But even to-day, in the midst of this strife, if the other powers,
including Great Britain, should agree to abolish naval blockades alto-
gether and forever, and to exempt private property from confiscation in
iQaritime war, we are prepared to consider the propositions. But we
^^^ make no proposition except as a whole nation. France and Great
Britain, having declared the insurgents a belligerent, are not prepared
to treat with ns as more than a part of a nation. Is it not clear that
^e sooner they reconsider that unnecessary step, so prematurely taken^
^© better it will be for all parties concerned! I send you a copy of my
^joinder to Earl Bussell on the Trent affair, which will show you more
*t large our views on this point.^'

Mr. Seward, Sec. of State, to Mr. Daytoo, Feb. 19, 1862. MSS. Inst., France ;

Dip. Corr., 1862.
As to docnmentB in the Trent case, see Senate Ex. Doc. 8, 39th Cong., 2d seas. ;

Brit and For. St. Pap., 1864-'65, vol. 65 ; 2 Phill. Int. Law (3d ed^, 168.

^' There is no recognized sanction of the principle that a bona fide
^nthenticated and sealed public mail of a friendly or neutral power,
found on a commercial vessel navigating between two neutral ports,
^nbe violated lawfully, either by a naval officer or a prize court, merely
because the vessel on which it is found is searched and seized as con-
traband."

Mr. Seward, Sec. of State, to Mr. VJTelles, Apr. 15, 1863, Apr. 20, 1865. MSS. Dora.
Let. See same to same, Oct. 31, 1862, excepting "simnlated or forged
mails."

In a case in New York, where official dispatches of importance were
^^Dt from Batavia to Kew York, and there given unofficially, without
jotice of their nature, to the master of a United States ship, to be sent
to a private person iu France, the ship was released upon the captain
testifying undef oath that he was ignorant of the nature and contents
^f the letters. (The Eapid, Edwards, 228.) On the other hand, the En-

^ 374.] CONTRABAND. [CHAP. XIX.

glish courts have held, with nndae harshness, that a vessel is not exempt
from confiscation for carrying such dispatches, even where it was invol-
untarily pressed into the belligerent service by force, or where the char-
acter of the dispatches was fraudulently concealed. (The Carolina, 4
C. Rob., 259 ; The Orezembo, G C. Rob., 430.) Sir R. Phillimore (iii, § 272),
sustains these cases, which Mr. Hall dissents from (p. 593). Bluuti«chli
(§ 803) maintains that military dispatches {e. g,j orders of a commanding'
officer to a subordinate to carry on military operations) are unquestion-
ably contraband, but that it is otherwise with dispatches professing
pacific negotiation, which are to be regarded as diplomatic correspond-
ence. (See cases noted in Wheaton, § 504, Dana's note.) lu the Tulip
(Fisher's Pr, Cas., 2(j)y it was held that a neutral ship may, by the law of
nations, carry dispatches from a minister resident in the neutral coun-
try to the ports of the belligerent in the country to which the minister
belongs. If stopped on the high seas by the other belligerent, how-
ever, the duty of the ship's master, it was held, is to deliver up the dis-
patches to the arresting belligerent.

The following is from Mr. Field's proposed international code : ** Sec-
tion 861. Documents are contraband when they are official communi-
cations from or to officers of a hostile nation, and fitted to subserve the
purposes of the war, but not otherwise.

" Sir William Scott interprets * dispatches,' treated of in the decis-
ions as warlike or contraband communications, to be ^official communi-
cations of official persons^ on theptthlic affairs of the Government.' (The
Caroline, G Oh. Robinson's Rep., 465.) But to this rule there is an ex-
ception in the case of communications to or from a neutral nation, or
the hostile nation's ministers or consuls resident in the neutral nation."

As to the effect of war upon the mail service^ see Field, sections 862,
919.

^'Lushington (Kavai Prize Law, Introd., p. xii) says, that to give up
altogether the right to search mail steamers and bags, when destined to
a hostile port, is a sacrifice which can hardly be expected from bellig-
erents ; cilrlng Disp. of Earl Russell to Mr. Stuart, November 20, 1862;
Parliamentary Papers, No. Amer., Nov. 5, 1863."

ma, J 862.

Mr. Horatio King, in the Magazine of American History for March,
1886, makes the following statement :

'^ Hon. Edward Everett, before the Middlesex Mechanics Association
at Lowell, justified the capture of Messrs. Mason and Slidell as peidTecUy
lawful — their confinement in Fort Warren as perfectly lawful — and said
* they would no doubt be kept there until the restoration of peace, which
we all so much desire, and we may, I am sure, cordially wish them a
safe and speedy deliverance.' Mr. George Sumner, a well-read lawyer,
said in the Boston Transcript of November 18, 'The act of Captain
Wilkes was in strict accordance with the principles of international law,
recognized in England, and in strict conformity with English practice.'
Even the British consul at New Orleans, Mr. Muir, it was authoritatively
stated, justified the seizure and supplied legal authority to appear in \^
legal editorial of one of the city papers. • ♦ ♦ There was a banquets
at the Revere House, in Boston, in honor of Captain Wilkes, Hon. J-
Edmnnds Wiley presiding. His act was highly applauded by Mr. Ed-
munds, Governor Andrew, and Chief-Justice Bigelo^." When suclx
eminent men sustained the highest belligerent claims, we cannot be snr-.

448

CHAP. XIX.] DIPLOMATISTS : TRENT CASE. [§ 374.

prised that analogous high preteusioDS were made by English states-
meu and courts during the agonj' of the Napoleonic wars.

Dr. Woolsey (Int. Law, § 184) speaks as follows: "The cage of the
Trent, in which this and several other principles of international law
were involved, may here re<5eive a brief notice. This vessel, sailing
from one neutral port to another on its usual route as a packet ship,
wa« overhauled by an American captain, and four persons were ex-
tracted from it on the high seas, under the pretext that they were
ambassadors, and bearers of dispatches from the Confederate Govern-
meot, so called, to its agents in Europe. The vessel itself was al-
lowed to pursue its way, by waiver of right as the officer who made the
detention thought, but no dispatches were found. On this transaction
we may remark : (1) That there is no process known to international
law by which a nation may extract from a neutral ship on the high sea
a hostile ambassador, a traitor, or any criminal whatsoever. Kor can
any neutral ship be brought in for adjudication on account of having
f^nch passengers on board. (2) If there had been hostile dispatches
foond on board, the ship might have been captured and taken into port;
and when it had entered our waters, these four men, being citizens
charged with treason, were amenable to our laws. But there appears
to have been no valid pretext for seizing the vessel. It is simply ab-
surd to say that these men were living dispatches. (3) The character
of the vessel as a packet ship, conveying mails and passengers from one
nt- otral port to another, almost precluded the possibility of guilt. Even
if hostile military persons had been found on board, it might be a ques-
tion whether their presence would involve the ship in guilt, as they
were going from a neutral country to a neutral country. (4) It ill
l>ecame the United States — a nation which had ever insisted stren-
uously upon neutral rights — to take a step more like the former British
practice of extracting seamen out of neutral vessels upon the high seas,
than like any modem precedent in the conduct of civilized nations, and
that, too, when she had protested against this procedure on the part of
Great Britain and made it a ground of war. As for the rest, this affair
of the Trent has been of use to the world, by committing Great Britain
to the side of neutral rights upon the seas."

An extended discussion of the topic treated in this section will be
foand in Dana's Wheaton, § 504, note, 641 ff, Mr. Dana states that in
case of the Trent having been brought into an American prize court,
Messrs. Mason and Slidell '^ could not be condemned or released by the
court. They would doubtless have been held as prisoners of war by the
Ignited States Government." But " there is no decided case in England
or America that required the condemnation of the vessel, even if Messrs.
Mason and Slidell had not the immunity of diplomatic persons."

In an article in the I^orth American Review for July, 1862 (vol. 95, 8),
Mr. Seward's position that the Trent should have been sent to a prize
court 18 elaborately criticised. The chief objection taken is that (as Mr.
Seward admitted) as tiie judgment of a prize court " could determine
nothing in relation to the lawfulness of the capture of these persons,"
fhe appeal to the prize court would, even in case of condemnation, be
iiieffectual. But the answer is that the '^persons" in question would then
^&ve been brought, and brought lawfully, into the jurisdiction of the
^uited States, liable to be dealt with by any process that might be
i^tituted against tiiem.

S. Mis. 162— VOL. Ill 29 449

§ 374.] CONTRABAND. [CHAP. XIX.

'' Had Maijon aud Slidell ouce reached their destiuatiou, they would
thereafter hare been invested with that immunity which pertains to a
diplomatic agent on board a neutral vessel. But on their way thither
they were, by the American doctrine, tp be regarded as embryotic min-
isters only ; their diplomatic character and privileges had not vested
absolutely, but were contingent upon their uninterrupted arrival at the
countries to which they were respectively accredited. ♦ ♦ • The
whole subject of the transportation of diplomatic persons remains in

5 Am. Law Rev., 268.

^^ One thing, however, the United States claim, and with a good show
of right, that the Trent case did settle conclusively, and that is, that
where the passage of contraband persons is to be interrupted, it is un-
justifiable to remove them bodily from the vessel and to allow her to
proceed. She must herself be seized and carried into the belligerent
port for trial in the prize courts."

Ibid,

Prof. Mountague Bernard, after a full discussion of the Trent case,
holds that a neutral merchant or packet ship carrying persons in an
enemy's employment is not liable to condemnation unless she is used
by the enemy as a transport.

Neutrality of Great Britain, &c., ch. 9. See 2 Revae de droit int., 126.

Mr. Seward's reasonings " would serve to justify, and may be taken
to encourage, the captain of the Tuscarora to seize the Dover packet
boat and carry her into New York for adjudication, in case Messrs. Ma-
son and Slidell should take a through ticket from London to Paris.''

Histovcns, 192.

^^ Although dispatches are classed as contraband articles, and their
carriage is illegal, because of their peculiar character, ambassadors are
neither contraband articles nor denounced by international law."

Abdy'8 Kent (1878), 359.

'^ The suppression of Mr. Seward's pacific note, and the positive de—
nial of the fact that such a communication had been received, published^
in the prime minister's personal organ, would have formed the subjectir
of discussion in Parliament if Parliament had not been at that time iis^
a remarkably complaisant mood. The expedition to Canada, at a sea —
son when no military operations could possibly have been undertakecB.
in that quarter, has entailed upon this country a waste of several mill —
ions, besides other bad effects. Undoubtedly the prime minister of tha'^
day did exhibit his usual love of displaying military force ; and aU wiU
admit that anything like a gratuitous menace was peculiarly offensive*
and unworthy when directed against a nation in distress. But ca:
Americans honestly say that no color of justification for a display
force was afforded on their side?"

Gold win Smith iu 13 Macmillan^H Mag., 169.

According to Heffter (§ 161a^ as adopted by Perels (§ 47), the •• traas-
port of the diplomatic agent or a belligerent to a neutral port cannot
be by itself regarded as a violation of neutrality ; the object of tb'^
agents must be an alliance for the continuance of the war, in which ca«e

450

OHAP. XIX,] DIPLOMATISTS: TRENT CASE [§374.

the arrest and carrying off would be not uujustifiable.'^ Perels disseuU
from Gessner's distiDction that sach arrest would not be justifiable,
even in the latter case, if made when the agent was passing between
two neutral ports.

It is argued by Fiore, droit int. (trans, by Autoine, 1886, vol. 3,
§ 1^)5), that a belligerent can preclude agents of the other belligerent
from crossing his territory, but he cannot preclude them from being
transported in a neutral ship on the high seas. In tbe Trent case, he
goes on to say, that if belligerent dispatches are contraband of war,
«o, afortiarij is it with the diplomatic agents carrying them ; but this
position, he thinks, was victoriously combatted by Lord Russell, in his
reply. Mr. Fiore goes on to say that a great majority of publicists dis-
sented from the position that the arrest of Messrs. Mason and Slidell
•could be sustained.

For furtheT notices of the Trent case see 46 Hunt's Merch. Mag., 1 ; 5 Am. Law

Rev., 267 ; 8 South. Law Rev., 33 ; Abdy's Kent (1878), 355.
For detsUs as to action in Trent case, see 1 Thurlow Weed's Life, 634 ff. ;

Lond. Quart. Rev., Jan., 1862.
That insurgents may have informal diplomatic relations with neutrals, see

supra, $ 69 ; Whart. Com. Am. Law, ^ 165 ; 5 J. Q. Adams' Memoirs, chap.

xii, where several interviews of Mr. Adams, when Secretary, with such

emissaries, are noted.

Deviating in this respect from the practice adopted in the general ar-
rangement of this work, the reply of Lord liussell to Mr. Seward's in-
stTQctions in the Trent case is given above, in connection with those
instructions. The reason is that Lord Eussell's reply takes ground
'^liicb was substantially adopted by the leading European powers, and,
therefore, placing it side by side with Mr. Seward's instructions, gives
08 a basis from which we can gather certain general rules in respect to
the important subject of which it treats. These rules are as follows :

(1) Diplomatic agents s^ent by one belligerent to a neutral are not,
i? themselves, contraband of war, subject to seizure by the other bel-
^gerent if found on a neutral ship on the high seas. It is true that a
Wligerent diplomatic agent may carry with him dispatches which are
Promotive of the belligerent designs of the power he represents; and
if so, such dispatches will be contraband of war, and, if the agent car-
fying them be proved to be cognizant of their character and employed
in eairying out the belligerent purpose they disclose, he may be sub-
Med to £e same taint and exi)Osed to the same contingencies. But
it does not follow that a diplomatic agent from a belligerent, when on
^ neutral vessel, bound to a neutral port, is necessarily employed in
tlje furtherance of belligerent designs. He may be engaged on an er-
fstnd of peace. This may be in two ways. He may be seeking to con-
snmmate some such general plan for the mitigation of the sufferings of
^ar, as was set forth by the declaration of Paris of 1856, or by the Gen-
eva conference which met during the Franco-German war. It is well
^DowD that both Great Britain and France sought to obtain the acces-
^on of other powers to the principles with regard to freedom of neutral
*Mp8 adopted by the Treaty ot Paris ; and it is noticed in other sections
l^f this work that the United States Government, when a neutral dur-
ing the Napoleonic wars, sought to have agreements of the same charac-
^«r made between itself and the then great belligerent powers. Such a
^ndition of things would be likely again to occur in any future maritime
^ar China, for instance, is rapidly becoming an important power, with a

451

§ 374] CONTRABAND. [CHAP. XIX^

great population capable of being eflScieutly employed in naval enter-
prises, and with a Government which is able to appreciate and employ
remarkably capable diplomatists. (See Loudon Spectator, Sept 11,
1886, 1203.) The relations of China to France are such as that war
between these powers may at any time be renewed, and this on a large
scale ; and if such a war should arise, the United States would be not
unlikely to intervene to mitigate its horrors, and the United States-
Government would be prompted, should such an intervention take
place, to say to China : '^ Send to us, if you choose, an envoy specially
charged with the mission of coming to some such arrangement as may
make the war in. which you are engaged conform to modem civilized
usage. You have held," so the United States might say, ^^ that in an ex-
treme case you might permanently obstruct your ports of entry. This-
is a matter as to which your envoy might treat at Washington with the
French legation." Or the United States might, as it has done in other
cases, consent to mediate and say : ^' Send your envoy to Washington for
the purpose of canvassing with the French envoy the terms of peace,
just as we sent our envoys to St. Petersburg iu 1813 for the same
purj)ose." Now the United States Government, as in a peculiar de-
gree the vindicator of neutral rights, and as eminently bound to pro-
mote peace, and to prevent any undue supremacy on the high seas of
any great maritime power, would not tamely acquiesce in the seizure,
on one of her own merchant ships on the high seas, of envoys sent U>
her from China for such pacific purposes as this. The question then
comes up, suppose, under such circumstances, a Chinese envoy should
be arrested on the high seas iu a United States ship, and suppose that
no papers were found in his custody showing that his design was to add
to the strength of Chinese belligerency, could the arresting belligerent
impute from the nature of things a contraband character to such en-
voy t Now, the reasoning of Lord BusselK sustained by the other great
European powers and acquiesced in by Mr. Seward, is that no such con-
traband character is to be so imputed. And the reasons are obvious.
First, when an a^ent is engaged in a mission which is only on a par-
ticular contingency illegal, such arrest cannot be sustained unless such
illegal contingency can be shown to exist. Secondly, even were we to
reject this position, diplomacy, it must be recollected, is the police of
peace; and until the contrary is shown, a diplomatic agent on the high
seas is to be presumed to be on a pacific errand.

(2) The case is not altered when the diplomatic agent, whose status -
is under discussion, represents an insurgent power whose belligerency
(but not whose sovereignty) has been recognized by the power in on^
of whose ships such envoy is arrested. During the latter part of th»
long contest between Spain and her South American colonies, thos^^
colouies had informal agents at Washington, who were received so fiur"
as such reception enabled the United States to intercede with both bel—
ligerents for the adoption of humane modes of warfare, and ultimately
for the settlement of Judicious terms of peace. The United States would
certainly have witnessed with grave displeasure the seizure and confis-
cation by Spain on a United States ship of one of those envoys bound to
the United States ; and if Spain had insisted on such a measure she
would have hastened the acknowledgment of South American independ-
ence. It is not impossible that the United States may be placed in a
similar condition of neutral interposition between Great Britain and s
revolted province, either in the Old or the New World. If so, the United
States would not be likely to silently acquiesce in the seizure on board

452

^HAP. XIX.] MAY BE SEIZED ON HIGH SEAS. [§ 375.

of one of her merchant ships of envoys to herself from each insurgents
(they being recognized as belligerents), unless it should be proved that
the object of those envoys was to obtain, in violation of the law of na-
tions, troops or contraband of war.

(3) Where there is ground to suspect an envoy froip a belligerent to
a neutral to be on a mission distinctively belligerent, then, if he be
arrested by the other belligerent on board a neutral ship, he and the
ship on which he is found must be taken to a prize court for adjudica-
tion. Undoubtedly the proceedings against him in such a prize court
would be novel, as such a case, if it should ever occur, would be the
fiist iustance in which an admiralty proceeding in rem would be insti-
tuted against a person. But be this as it may, Mr. Seward's position,
that such a case would be for a prize court, is not, supposing that there
be criminative evidence against the envoy, showing him to be on a dis-
tinctively belligerent service, directly controverted by Lord Bussel},
aud may be held to be now generally accepted. At the same time it
should be remembered that the action of a prize court in condemning
such euToy as contraband would not bar the neutral nation on whose
ship the arrest was made from proceeding against the arresting nation
ibr a violation of neutral rights. Swpray § 329.

IV. PENALTIES ON CONTRABAND,
Mat be seized on high seas.

§375.

In the correspondence between Mr. Pickering, Secretary of State, and
^' Adet, minister of France, in 1796, while it was agreed on both sides
that horses are contraband of war, it was maintained correctly by Mr.
Pickering, in opposition to Mr. Adet, that the only means of redress in
«nch cases by the offended belligerent was the seizure of such contra-
band on the high seas, or in his own country, and that the Government
of the country of exportation was not required by international law to
prohibit such exportation.

Mr. Pickering, Sec. of State, to Mr. Adet, Jan. 12, May 25, 1796. MSB. Notes,
For. Leg. 1 Am. St. Pap. (For. Rel.), 646/., 649.)

*'In reference to your letter of the 2d February last, I soon after took
^^sion to intimate to you what appeared to be the President's way of
thinking on the subject. I have now the honor to state to you that
^hile, by the law of nations, the right of a belligerent power to capture
detain the merchant vessels of neutrals, on just suspicion of hav-
on board enemy's property, or of carrying to such enemy any of
^6 articles which are contraband of war, is unquestionable, no prece-
^®Qt is recollected, nor does any reason occur which should require the
f'cutral to exert its power in aid of the right of the belligerent nation
I^SDch captures and detentions. It is conceived that, after warning
it« citizens or subjects of the legal consequences of carrying enemy's
P^perty or contraband goods, nothing can be demanded of the sover-
^ of the neutral nation but to remain passive. If, however, in the

453

§ 375.] CONTRABAND. [CHAP. X

preseut case, the British captors of the brigantine Experience, Hev
master; the ship Lacy, James Conolly, master, and the brigantine F
Golnmbia, Edward Carey, master, have any right to the possession
those American vessels or their cargoes, in conseqaence of their ca
are and detention, but which you state to have been rescued by th
masters from the captors and carried into ports of the United Stat
the question is of a nature cognizable before the tribunals of justi
which are opened to hear the captors' complaints, and the proper o
cer will execute their decrees.

'^ You suggest that these rescues are an infringement of the law
nations. Permit me to assure you that any arguments which you sh
offer to that point will receive a just attention.

"^ With regard to the British seamen and deserters who have assist
in the rescues, with great truth I am authorized to assure you that '
Goverument have no desire to retain them; but besides that the ms
njODtbs elapsed since those events, and the consequent dispersioi
the men, would probabjy render their delivery im[)racticable, it is
known to be authorized by any law. This ha« brought into view y
project of stipulations for the mutual delivery of deserters, whet
seamen or soldiers ; and I have now the honor to inclose a counter]
ject by which you will see the objections which have occurred to y
propo(>itions. The President has been pleased to direct and empc
me to negotiate with you on this subject, and ifWill afford kirn gi
pleasure if we can make a satisfactory arrangement.''

Mr. PlckeriDg, Sec. of State, to Mr. Liston, May 3, 1600. M8S. Notes, For. L
reprinted in Dip. Corr. for lfc62, 149.

The rule '^ that a vessel on a return voyage is liable to capture
the circumstances of her having on the outward voyage contrabs
articles to an enemy's port" is an interpolation in the law of natiou>

Mr. Madison, Sec. of State, report of Jan. 25, 1806. MSS. Dept. of State.

" It is natural that Peru should be incensed at the exportatiou
nitrate for the benefit and account of her adversary. It is to be
gretted, however, that sbe should allow her resentment to lead her
claim a belligerent right not acknowledged by any authority, that
capturing on the high seas vessels of a neutral for having on bonn
cargo from a place which she controlled before the war. In this Ofl
however, her title to it was annulled, or at least suspended, by the arn
occupation by Chili of the region whence the article was taken. 1
attempt of Peru, therefore, to avenge upon neutrals her want of gc
fortune in the contest will not, it is to be feared, add to her reputat
for magnanimity or regard to public law, and certainly will not be
quiesced in by the Governments of neutrals, whose interests may there
be affected."

Mr. £vart«, Sec. of State, to Mr. Christiancy, Mar. 2, 1880. MSS. Inst., Pe
For. Rel., 1880.

454

CHAP. XIX.] MAY BE SEIZED ON HIGH SEAS. [§375.

The carriage of coutraband goods does uot subject the vessel and re-
maining cargo to confiseatioD, unless thej' all belong to the same owner,
or unless there has been some actual co-operation in an attempted fraud
upon the belligerent, by covering up the voyage under false papers, and
with a false destination. When the contraband goods have been de-
posited at the port of destination, neither the vessel nor the cargo is
liable to seizure on the return voyage, though the latter may have been
purchased with the proceeds of the contraband.

The same rule would seem to apply, by analogy, to cases where the
contraband articles have been deposited at an intermediate port on the
outward voyage, and before it terminated. But if the voyage be dis-
guised, and the vessel sails under false papers, and with a false desti-
nation, the mere deposit of the contraband in the course of the voyage
does not exempt the vessel from seizure.

Carrington v. Idb. Co., 8 Fet.« 495.

Mere consent to transportation of contraband will not always or usu-
ally be taken as. a violation of good faith by the neutral owner of a
sbip. There must be circumstances of aggravation. The nature of the
contraband articles and their importance to the belligerent, and gen-
eral features of the transaction must be taken into consideration in
(letennining whether the neutral owner intended or did not intend, by
consenting to the transportation, to mix in the war.

Contraband of war is always subject to seizure when being conveyed
to a belligerent destination, whether the voyage be direct or indirect ;
such seizure, however, is restricted to actual contraband, and does not
^tend to the ship or other cargo, except in cases of fraud or bad faith
on the part of the owners or of the master with the sanction of the
owners.

The Bermuda, 3 Wall., 514 ; The Springbok, 5 ihid,, 1. Theee cases are criti-
cised supra, $ 362.

Contraband articles contaminate the non-contraband parts of a cargo,
^ belonging to the same owner, and the non-contraband must share
^be fate of the contraband.

The Peterhoff, 5 Wall., 28.

Conveyance of contraband attaches in ordinary cases only to the
^^ight of the contraband merchandise. It does not subject the vessel

^^ forfeiture.

Dnd,

'Hie trade of neutrals with belligerents in articles not contraband is
^Jj^olntely free, unless interrupted by blockade.

nid.

^'here coutraband and not contraband belong to the same owner,
^« latter must share the fate of the former.

Ihid.

§ 375.] CONTRABAND. [CHAP. 3

So far as concerns those portions of the above rulipgs in which,
law of contraband is blended with that of blockade, they are con.
ered in the discussion of the Springbok case. (Supra, § 362.) It ma^
here stated that while contraband goods, when at sea, are liable to
seized at any period of their transit, if the fact that they were intenc
for the opposing belligerent is established, the taint cannot be extend
to uon contraband goods in the same cargo.

The Stephen Hart (Blatch. Pr. Ca., 387), where it was held if t
guilty intention of transporting contraband goods existed when t
goods left their own port, such intent could not be obliterated by t.
innocent intention of shipping at a neutral port in the way, and th
such voyages form one transaction, is stated and examined in Abd3
Kent (1878), 349.

" The right of the neutral to transport, and of the hostile power
seize, are conflicting rights, and neither party can charge the oth
with a criminal act."

1 Kent Com., 142 ; approved by Lord Weetbury, Ex parte Chavawe, 11 Jar.,
Sm 400. See II Op., 408, 451 ; The Helen, L. B., 1 Ad. & £o., 1.

The following passage from Kent's Gom.^ 142, is quoted by Sir V
Harcourt (Historicus, 129), with high encomium :

<< It is a general understanding, grounded on true principles, thattl
powers at war may seize and confiscate all contraband goods withoi
any complaint on the part of the neutral nation, and without any imp
tations of a breach of authority in the neutral sovereign himself,
was contended on the part of the French nation, in 1796, that neatr
Grovernments were bound to restrain their subjects from selling or ii
porting articles contraband of war to the belligerent powers. Bat
was su< cessfully shown, on the part of the United States, that neutrfl
may lawfully sell, at home, to a belligerent purchaser, or carry themselv
to the belligerent powers, contraband articles, subject to the right
seizure in transitu. This right has since been explicitly declared by tl
judicial authorities of this country. The right of the neutral to trar
port, and of the hostile power to seize, are conflicting rights, ai
neither party can charge the other with a criminal act.''

Sir W. Harcourt, on the same page, also adopts as ^' conclusive ai
authoritative," the following from Judge Story's opinion in the Santi
sima Trinidad :

'^ There is nothing in our laws or in the laws of nations that forbi(
our citizens from sending armed vessels as well as munitions of war
foreign ports for sale. It is a commercial adventure which no natii
is bound to prohibit, and which only exposes the persons engaged
it to the penalty of confiscation." See infra, §§ 391, 393.

In other sections the liability of neutral or alien property to seizure
considered as follows: Rights of aliens generally, § 201 ; subjection •
to local seizures, § 203; injury of, from ^^lligerent action, §§ 223 Jf.;
jury of, from mob violence, § 226; belligerents' spoliation by neotr
§ 227 ; neutrals' spoliation by belligerent, § 228 ; subjection of alien
reprisal, § 318 ; confiscation of goods of, as a war measure, § 336 ; i
putability of enemy's character to neutral, § 352; cotton belong^
to neutral, susceptibility of, to seizure when in belligerent lines, §§ 3
224-228, 352, 353, 373.

As to domicil attaching to alien, see $ 198.
450

CHAPTER XX.

PIBACT AND PBIVATEEBDrO.

1. Definition 6f pikacy.

(1) MDst be robbery ou the high seaSi $ 380.

(2) Warlike attacks of InsurgentB not piracy, $ 381.

n. MUNICIPAI. DEFINITIONS NOT EXTRATERRITORIAL, $ 382.

ni. Pkiyatebrs.

(1) Who axQ, i 383.

(2) Not pirates by law of nations, $ 384.

(3) Sastained by policy of the United States, $ 386.
As to arming merchant vessels, see $ 39.

I. DEFINITION OF PIRACY.

(1) Must be robbery on the high seas.

§ 380.

Armed craisers, which, thongh claimiDg to be commissioned by in-
^^gents, prey on merchant vessels of all nationalities indiscriminately,
^ to be regarded as pirates.

ifr. Adams, Sec. of State, to Mr. Nelson, Apr. 28, 1623. MSS. Inst., Ministers.

A mere intention or even preparation to commit piracy is not piracy.

Mr. Clayton, Sec. of State, to Mr. Calderon de la Barca, July 9, 1850. MSS.
Notes, Spain.

A merchant vessel whose subordinate crew rise in revolt, and, after
Uling the captain, make depredations on other shipping, is a pirate by
the law of nations.

Mr.Marcy, Sec. of State, to Mr. Starkweather, Sept. 18, 1S54. MSS. Inst., Chili.

"General hostility," as distinguished from special, is a condition of
piracy by the law of nations, and does not exist in a case of homicide *
by revolt of crew.

Ifr. Seward, Sec. of State, to Mr. Van Yalkenborgh, Feb. 19, 1869. MSS. Inst.,

Ja^an.
Definitions of piracy are given infra^ $ 381.

An exposition of the statutes of the United States in relation to pi-
^ is given in the opinion of Mr. E. Peshine ^mith, law officer of the
Apartment, January 6, 1871, communicated by Mr. Pish, Sec. of State,
to Mr. Mazel, June 6, 1871. MSS. Notes, Netherlands.

457

/380.] PIRACY AND PRIVATEERING. ""^^pJHar* j

A robbery committed on the high seas may be piracy under the act
the 13th of April, 1790, for the punishment of certain crimes a^aii
the United States, although such robbery, if committed on land, woi
not by the law of the United States be punishable with death. 1
crime of robbery, as mentioned in this act, is the crime of robbery
recognized and defined at common law.

The crime of robbery, committed by a person who is not a citizen of 1
United States, on the high seas, on board of a ship belonging exclusivi
to subjects of a foreign state, is not piracy under the act, and is i
punishable in the courts of the United States.

U. S. V. Palmer, 3 Wheat., 610.

A commission granted by Aury, styling himself brigadier of the Me
can Eepublic, a Bepublic of whose existence nothing is known, and g«
eralissimo of the Floridas, a province in the possession of Spain, ^
not authorize citizens of the United States, under our statute, to cm
as privateers ; and it appearing that a capture by such persons, thou
ostensibly made under such a commission, was made, in fact, not jt
belli^ but animofurandij the ofiense is statutory piracy.

By the act of the 30th April, 1790, section 8, persons on board of a
vessel which has thrown off its national character by cruising pira
cally, are triable on a charge of piracy in the courts of the United Stat

U. S. V. Ellntock, 5 Wheat., 144 ; U. S. v. Pirates, ihid., 184. See infra, $ 381

Bobbery or forcible depredations upon the sea, animofurandij is
racy by the law of nations.

U. S. V, Smith, 5 Wheat., 153.

By assuming the character of pirates, the crew of a vessel loaf
claim to national character or protection. Hence an American cit|
fitting out a vessel in a port of the United States to cruise agaiif
power with which the United States are at peace, is not protected,,'
commission from a belligerent, from punishment for any offense '
mitted by him against vessels of the United States. On an indic^
in such a case, a jury may find that a vessel, within a marine leaf
the shore, at anchor in an open roadstead, where vessels only ridel
the shelter of the land at a season when the course of the winds
variable, is upon the high seas.

U. 8. V, Pirates, ihid,, 184, 204, 206. '

Though the independence of Buenos Ay res has not been af
edged by the United States, ^e have recognized the existence ct
of civil war between Spain and its colonies, and each party to i
is respected by us in its exercise of all belligerent rights, inclif
right of capture. ^

The SaDtiasima Trinidad, 7 Wheat., 263. See infra, $ 381. I

458

fjHKP- iX-] DEFINITION OF PIBACY. [§ 380.

Tbe AfiricaD slave trade not being repngnant to tbe law of nations, a
vessel cannot be brought in by an American cmiser for adjudication for
being engaged in it, even where the vessel belongs to a nation which
has prohibited the trade.

The Antelope, 10 Wheat., 66.

A piratical aggression by an armed vessel is a good ground for confis-
cation and is so made by the act of March 3, 1819. But not every hostile
attack in time of peace is piratical. It may be by mistake, or in nec-
essary self-defense, or to repel a supposed meditated attack by pirates,
^f justifiable, no blame attaches.

The Marianna Flora, 11 Wheats !•

^xt>bable cause is a sufficient excuse for a capture for piratical ag-
^ssion.

Jbid.; The Palmyra, 12 Wheat., 1.

^ non-commissioned cruiser may seize for the benefit of the Govern-
meat.

Carrington r. Merchants' Ins. Co., 8 Pet.j 495. *

O'uder the 9th article of the treaty of 1819, between the United
Stat-^g and Spain, providing for the restoration of property rescued from
pirates and robbers on the high seas, it is necessary to show : (1) That
^liB.t; is claimed falls within the description of vessel or merchandise ;
(^) that it has been rescued on the high seas from pirates and robbers ;
(3) tliat the asserted proprietors are the true prbprietors.

U. S. V. The Amistad, 15 Pet., 516.

As to this case in detail, see »upra, $ 161.

Under this article negroes lawfully held as slaves and subject to sale
Glider the laws of Spain, on board a Spanish vessel, may be deemed
i&^rchandise ', but native Africans, uolawfuUy kidnapped and imported
uito a Spanish colony contrary to the laws of Spain, as in this case, are
not merchandise ; nor can any person show that he is entitled to them
^ their proprietor, nor are they pirates and robbers, if they rise and
^M tbe master and take possession of the vessel to regain their liberty.

IHd,

Native Africans, unlawfully detained on board of a Spanish veissel
*^ not bound by a treaty between the United States and Spain, but
^*y» as foreigners to both countries, assert their rights to their liberty
Wore the courts of the United States.
ihid.

Under the fourth section of the act of March 3, 1819, any piratical ag-
SJ^Sfiion subjects the vessel to forfeiture, though not made catisd lucri
^d though the owners were entirely innocent, and the vessel was armed
^^^ a lawful purpose and sailed on a lawful voyage.

n. S. 9. brig Malek Adhel, 2 How., 210.

469

§ 380.] PIRACY AND PRIVATEERING. [CHAP. XX,

Persons trading to the west coast of Africa, on which coast two kinds of
commerce are carried on — one (the regular trade) lawful, the other (the
slave trade) criminal — should keep their operations so clear and dis-
tinct in their character as to repel the imputation of a purpose to en-
gage in the latter.

The Slavers, 2 Wall., 350.

Piracy is defined by the law of nations to be a forcible depredation
upon property on the high seas, without lawful authority, done animo
furandi ; that is, as defined, in this connection, in a spirit and intention
of universal hostility. A pirate is said to be one who roves the sea in
an armed viessel, without any commission from any sovereign state, on
his own authority, and for the purpose of seizing by force and appro-
priating to himself, without discrimination, every vessel he may meet.

In a state of war between two nations a commission to a private
armed vessel from either of the belligerents affords a defense, according
to the law of nations, in the courts of the enemy, against a charge of
robbery or piracy on the high seas of which it might be guilty in the
absence of such authority.

U. S. V. Baker, 5 Blatcb., 11-13.

If the prize be a pirate the officers and crew are to be prosecuted in
the circuit court of the United States, without respect to the nation to
which each individual may belong.

If it be regularly commissioned as a ship-of-war, the officers and crew
are to be detained as prisoners, except such as are citizens of the United
States, who are to be tried for treason.

1 Op., 85, Lee, 1798.

Prosecutions for piracy committed out of the jurisdiction of any par-
ticular State, should take place in the distiict where the offender L
apprehended, or into which he may be first brought.

1 Op., 185, Rush, 1815.

Certain citizens of the United States were arrested while sailing
privateers under a commission frx)m Artigas, a Portuguese colore y^
then in a state of insurrection, but not recognized as a sovereign po^^er
by our Government. It was advised that they should be indicted »«
pirates under the act of 1790.

1 Op., 249, Wirt, 1818.

The recaptors of American vessels from pirates are entitled to sal-
vage} but the rate resu> in the discretion of the court before which tlie
cases shall be brought.

1 Op., 531, Wirt, 1822.

A French vessel with kidnapped Africans on board was captured ^7
pirates, and from them recaptured by an American vessel and brooS'''

460

CBJl?. XX.} DEFINITION OF PIRACY. [§ 380.

into port A demand made by the French minister for the restoration
of tbe Africans was held to be well founded.

Hid.. 334.

^ recapture from pirates gives a fair claim for salvage by tbe general
ujc^ritime law, and by the act of March 3, 1800, national ships are en-
titled to salvage from ships of friendly powers rescued from their ene-
mies, which act, in spirit, applies to rescues from pirates.

Ibid., 577.

By analogy to the act of the 3d of March, 1800, the rate of salvage
to '^hich recaptors of an American vessel from pirates are entitled is
one-sixth of the vessel and cargo, or, if the vessel has been armed since
ber capture, one-half of the vessel and one-sixth of the cargo.

Ibid,, 584.

If the vessel had been long in the hands of pirates and used as their
own, a higher rate of salvage should be allowed than if she were re-
captared in the moment of her capture, having just struck, and the
crew being still capable of resistance.

Ibid.

It is not statutory piracy for the captain of a vessel, to whom the
"^^ssel and cargo have been consigned with instructions to proceed to
tie Pacific and there sell vessel and cargo and remit the proceeds to
the owners, to fail to remit such proceeds after having made sale ac-
<^ording to instructions ; and his arrest on such a charge would be false
imprisonment.

20p.,19, Wirt, 1825.

^^uder the act of March 3, 1819, persons charged with piracy must
^ tried in the circuit court for the district into which they are first
oroQgiit, or in which they were found ; and it is not in the power of
^i^ President to send them to another tribunal, domestic or foreign.

•2 Op., 559, Taney, 1833.

during the civil war, the existence of which had been recognized by
^^e United States, between Texas and Mexico, a Texan armed schooner
^ptured an American merchantman, on the ground that she was laden
^ith provisions, stores, and munitions of war^for the Mexican army. It
^^^ held that the capture could not be deemed an act of piracy unless
^' should appear that the principal actors in it were citizens of the
^Jilted States, in which case they might be indicted for piracy under
^^e 9th section of the crimes act of the 30th of April, 1790, which
^^lares "that if any citizen shall commit any piracy or robbery, against
^*^^ United States or any citizen thereof, upon the high seas, under color
^^ any commission from any foreign prince or state, or on any pretense
^* authority from any person, such offender shall, notwithstanding the
P^teuse of any such authority, be deemed, adjudged, and taken to be

461

§ 380.] PIEACY AND PRIVATEERING. [CHAP. XX.

a private felon and a robber, and on being thereof convicted shall suffer
death.''

3 Op., 120, Batler, 1836.

When a civil war breaks out in a foreign nation, and part of such
nation erects a distinct and separate Government, and the United
States, though they do not acknowledge the independence of the new
Government, do yet recognize the existence of a civil war, our courts
have uniformly regarded such party as a belligerent nation in regard
to a€ts done^'i^re belli.

IJnd.

Such acts may be unlawful when measured by the laws of nations or
by treaty stipulations; the individuals concerned in them may be
treated as trespassers, and the nation to which they belong may be
held responsible by the United States, but the parties concerned are
not treated as pirates.
lUd.

Persons, however, acting under a commission from one of the bellig-
erents, who make a capture, ostensibly in the right of war, but really
with the design of robbery, are guilty of piracy.

Although it has been doubted whether a mere body of rebellious m^^
can claim all the rights of a separate power on the high seas, withovit
absolute or qualified recognition from foreign Governments, there is ^ lo
authority for a doubt that the parties to a civil war have the right to
conduct it with all the incidents of lawful war within the territory to
which they both belong.

9 Op., 140, Black, 1858.

When, during the existence of a civil war in Peru, American vess^s
found a port of that country, and points on its coast where guano is de-
posited, in the possession of one of the parties to the contest, and pro-
cured under its authority and jurisdiction clearances and licenses at the
custom-house to load with guano, they were guilty of nothing (having
acted fairly in pursuance of the license) for which the other party to the
civil war could lawfully punish or molest them afterward.

To make the fire of one vessel into another a piratical aggression ou^er
the act of March 3, 1819, it must be a first aggression, unprovoked by
any previous act of hostility or menace from the other side.

9 Op., 455, Black, 1860.

Obiter J that piracy can be committed on the great lakes, e. g*) ^^^
Erie.

11 Op., 114, Bates, 1864.

462

DEFINITION OF PIRACY. [§ 380.

Where a portion of the crew of the steai^er Edgar Stewart forcibly
displaced the master from command and took possession of the Tcssel,
it was advised that this did not constitate the offense of piracy, but of
mutiny ; that, for the latter offense, the parties charged are liable to be
tried and punished under the laws of the United States, and tbat the}-
may be tried therefor in any district into which they are first brougbt.

14 Op., 589, Hill, acting, 1872.

By the British statute of 17 George III, ch. 9, in 1777, after reciting
tbat whereas a rebellion and war have been openly and traitorously
levied and carried on in certain of His Majesty's colonies and planta-
tions in America, and '^acts of treason and piracy bave been com-
mitted on the high seas and upon the ships and goods of Hi8 Majesty's
Bubjects, and many persons have been seized and taken, who are ex-
pressly charged or strongly suspected of such treasons and felonies,
and many more such persons may be hereafter so seized and taken, and
whereas such persons have been or may be brought into this Kingdom
and iBto other parts of His Majesty's dominions, and it may be incon-
venient in many such cases to proceed forthwith to the trial of such
cnniinals, and at the same time of evil example to suffer them to go at
large/ it was enacted that ''all such persons (describing them) may be
*'5£5iined in custody, without bail or main-prize, till the 1st of January,
^778, and no judge shall bail or try any such person witbout an order
<'f the Privy Council, before that time." (31 Pickering's Statutes, 312,
^'>utinued anuuallv bv successive re-enactments till the end of the war.
^*d, vol. 32, 1, 175: vol. 33, 3, 183; vol. 34, 1.)

Lawrence's Wheaton (ed. 1863), 249. Supra, $ 382.

The operation of this act was confined mainly to American priva-
^^ersmen captured by British cruisers. None, however, were executed
^^ pirates under this statute, and all were ultimately exchanged or
Pleased.

Mr. Jefferson's report of December 30, 1790, relative to the Mediter-
ranean trade, and the expediency of resorting to forcible measures to
^^ppress Algerine piracy, is in 1 Am. St. Pap. (For. Eel.), 104.

Preftident Monroe's message of May 21, 1824, explanatory of the con-
tention with Great Britain making the slave trade piratical is given in
I Senate Doc. 374, 18th Cong., 1st sess. ; 6 Am. St. Pap. (For. Eel.), 344,

* See also on this topic Senate Rep., Jan. 10, 1625; Senate Doc. 390, IStli Cong.,

] 2d sess. ; 5 Am. St. Pap., 489. House Doc. No. 396, 18th Cong., 2d sess; 5

i Am. St Pap. (For. ReL), 585.

\ As to proceedings by United States consols in foreign ports in cases of piracy,

I mutiny, or any other offense against the United States, see Mr. Bnchanan,

\ Sec. of State, to Committee of Claims, Mar. 4, 1646. MSS. Report Book.

\, It has been held in England that piracy, being an ofifense jure gen-
*wm, an act of piracy, committed on the high seas on a vessel of the
^nited States, is not so exclusively an offense within the jarisdiction of
^ the United States as to sustain a demand by the United States on
yyreat Britain for the surrender of the parties concerned under the Brit-

|i»h- American extradition treaty.

Tlvoan, in re, 5 Best. d& S. 645; Cockhnm, C. J., diss. See adverse criticism in
\ Abdy's Kent (1878), 413 ; and see also Whart. Cr. PI. and Pr., $$ 45, 72;

Wbart. Cr. Law, ^ 284, 1686. Compare airpra, $$ 33a, 35a.

§ 381.] PIRACY AND PRIVATEERING. [CHAP. X

(2) Warlike AfTACKs of ixsurgekts not piracy.

§381.
Several Jadicial mlings on this topic will be foand $uprat $ 380.

The qaestion whether Gaptain Semmes, of the Alabama, should 1
prosecuted for piracy was discussed iu the Atlantic Monthly for Ju
and August, 1872, by Mr. Bolles, who was the Solicitor of the Nai
Department, and to whom this question was referred. This artic
{States at the outset thart —

'*By estahliahing a hlookade of Confederate ports, oar Government had n
o;;nizedthe Confederates as beUigerents, if not as a beUigerent state, and had th
confessed that Confederate officers and men, military or naval, conld not be treat
as pirates or gnerriUas, so long as they obeyed the laws of war ; the same recogniti<
was made when cartels for exchange of prisoners were established between the Fedei
and Confederate anthorities ; and, above all, when the Federal Ezecntive, after t
courts had declared Confederate privateersmento be pirates, had deliberately set asi
those judgments, and admitted the captured and condemned officers and men of t
Savannah and the Jeff Davis to exchange as prisoners of war.''

The conclusion is as follows :

*^ It is evident that after it had been, as it soon was, resolved that neither treasi
nor piracy shonld be charged against Semmes before a military or naval tribunal, ai
that his methods of capturing, 'plundering,' and destroying vessels shonld not 1
treated as offenses against pnblic law and duty, but that he should be dealt with aa
belligerent naval officer, bound to obey the laws of war and entitled to their protectio
it was needless to inquire where or by whom the Alabama was built, manned, arme
or commissioned, or whether a Government without an open port can legitimate
own or employ a naval force. These inquiries, however interesting or importai
they might be in other connections, were of no sort of interest or importance
elements of a trial for violating the laws of war in the conduct of a cruiser subje
to those laws and protected by them.

*'In this way the field and the duty of inquiry were reduced to the two subjects
cruelty to prisoners and perfidy toward Captain Winslow and the power he ropr
sen ted."

rhid.

These articles by Mr. Bolles are commented on by Sir A. Cockbun
in his opinion in the Geneva tribunal, and in 2 Bulloch's Secret Serric
Conf. States, 116 ff.

That a commission of some kind from a belligerent or insurgent powc
is necessary to relieve persons attacking a vessel on the high seas an
surreptitiously disposing of it and its cargo, from the charge of pirac:
supposing their work be one of general devastation, was held by tb
British vice-admiralty court in Halifax, in 1864, in the Chesapeake 'ca»
cited more fully supra^ § 27.

See Dana's Wheaton, 522.

In n. S. V. Baker, 5 Blatch., 6 (Trial of officers of the Savannah, 371
Judge Nelson charged the jury that " if it were necessary on the par
of the Government to bring the crime charged against the prisoner
within the definition of robbery and piracy as known to the commoo

464

CHAP. XX.] INSURGENTS NOT PIRATES. [§381.

law of Dations, there would be great difiQcalty in so doing, perhaps, upon
the coaiJts-^certainly upon the evidence. For that shows, if anything,
an iDteDt to depredate upon the Tessels and property of one nation only,
the United States, which falls far short of the spirit and intent which
are said to constitute the essential elements of the crime." To same
effect see Woolsey, Int Law, app. 3; Harlan, J., Ford v. Surget, 97 U.
8., 619; Dole v. Ins. Co., 6 Allen, 373 ; 2 Cliff., 394; Fiiield v. Ins. Co.,
47 Pa. St., 166 ; and other cases. It is true that a contrary view was
taken by Judges Grier and Cadwalader in Smith's case, in Philadelphia
in 1862, when a conviction took place, but there was no sentence, and
the prisoners were transferred to military control as prisoners of war,
and not as pirates.

For the following statement as to the latter case I am indebted to
Mr. Ashton, one of the counsel for the prosecution:

Washington, January 26, 1886.

I think that there was no motion made for a new trial in {he piracy cases — certainly
none vas ever argaed. After the conyiction of the prisoners a State question arose
as to what should be done with them. The Confederate QoTemment, it was under-
stood, threatened retaliation if they were harmed. The Attomey-Qeneral, Mr. Bates,
was in favor of their being duly sentenced, bnt Mr. Seward thought that they should
^ pxehaoged as prisoners of war, and his advice prevailed with the President ; and
my recollection is that the district attorney and marshal were instructed, in letters
bitten by Mr. Seward, to turn the men over to the military custody of the Gk>vem-
^^t Mr. Seward was somewhat in the habit at that time of directing the marshals
and dUtrict attorneys, a practice that Mr. Bates always resented whei^ his attention
^M ealled to it, and afterwards succeeded in correcting. At any rate we were in-
^cted to release the prisoners from civil custody, but how to do that was the ques-
tion. Judge Cadwalader, in consultation with me on the subject, suggested — you
hiowhow fertile he was in suggestion — that the men be brought into court on a writ
^^^9hwt earpu9, and that each should be asked to say whether he preferred to remain
iQ his present civil custody or to be remanded to the military custody from whence
"^ came. I adopted this suggestion, a writ was issued, the men were brought into
^^, and each was asked the above question by the court. It was, of course, an-
^^ered as we supposed it would be ; and an order was made by the court for the
delivery of the men, by the marshal of tjie district, to the military custody of the
^vernment. In that way we got rid of our white elephants. My recollection is
^^^ Jndge Grier was rather in favor of letting the law take its course in the cases,
ikDd that he would have sentenced the men if I had asked for judgment. Judge
">dva].ider, though believing the men had been rightly convicted, was satisfied to<
«t them go in the way I have mentioned.

I Wlieve that there is a report of Smith's case in the Law Library of Congress, but
what I have mentioned is not contained in it.

" Yoa will, therefore, say to the secretary for foreign affairs :
"1. That we do not dispute the right of the Government of Hayti to
^at the of&cers and crew of the Qaaker City and Florida [vessels in
the service of insurgents against Hayti] as pirates for all intents and
Purposes. How they are to be regarded by their own legitimate Gk)v-
^nient is a question of municipal law into which we have no occasion,
^f we had the right, to enter.

8. Mis. 162— VOL. m 30 465

§ 381.] ' PIRACY AND PRIVATEERING. [cHAP. ]

" 2. That this Government is not aware of any reason which woi
require or justify it iu looking upon the vessel named in a differ
light from any other vessels employed in the service of the insurgent

\^ 3. That regarding them simply as armeQ cruisers of insurgents i
yet acknowledged by this Government to have attained belligen
rights, it is competent to the United States to deny and resist the •
ercise by those vessels or any other agents of the rebellion of the pri
leges which attend maritime war, in respect to our citizens or th
property entitled to our protection. We may or may not, at our opti<
as justice or policy may require, treat them as pirates in the absoli
and unqualified sense, or we may, as the circumstances of any acti
case shall suggest, waive the extreme right and recognize, where fa*
warrant it, an actual intent on the part of the individual offenders, i
to depredate in a criminal sense and for private gain, but to capture a
destroy jure belli. It is sufficient for the present purpose that t
United States will not admit any commission or authority proceedi
from rebels as a Justification or excuse for injury to persons or propei
entitled to the protection of this Government. They will not tolera
the search or stopping by cruisers in the rebel service of vessels of t
United States, nor any other act which is only privileged by recoguiz
belligerency.

^*- 4. While asserting the right to capture and destroy the vessels
question, and others of similar character, if any aggression upon p^
sons or property entitled to the protection of this Government sh
recommend such action, we cannot admit the existence of any obli|
tion to do so in the interest of Hayti or of the general security of oo
merce."

Mr. Fish, Sec. of State, to Mr. Bassett, Sept. 14, 1869. MSS. Inst., Hayti.

<(The expedient of declaring a revolted national vessel to bo
< pirate ' ha« often been resorted to among the Spanish American cooi
tries in times of civil tumult, and on late occasions in Europe. At tb
time of the Murcian riping, in 1873, the insurgents at Cartagena seizes
the Spanish iron-clads in harbor and cruised with them along tb
coast, committing hostilities. The Spanish Government proelaiioei
the vessels pirates, and invited their capture by any nation. A Oei
man naval commander then in the Mediterranean did in fact captar
one of the revolted ships and claimed it as a German prize, but his ae
was disavowed. The rule is, simply, that a ^ pirate ' is a natural enem:
of all men, to be repressed by any, and wherever found, while a revoit€i
vessel is the enemy only of the power against which it acta. Wbilc i
may be outlawed, so far as the outlawing state is concerned, no foreip
state is bound to respect or execute such outlawry to the extent o
treating the vessel as a public enemy of mankind. Treason is no
piracy, and the attitude of foreign Governments towards the offewle

466

CHAP. XX.] INSURGENTS NOT PIBATES. . [§ 381.

may be negative merely, bo far as demanded by a proper observance
of the principle of neutrality."

Mr. Frelinghnysen, Sec. of State, to Mx. Langston, Deo. 15, 1883. MSS. Inst.,
Hayti ; For. Rel., 1884.

"The Government of the United States cannot regard as piratical ves-
sels manned by parties in arms against the Government of the United
States of Colombia, when such vessels are passing to and from ports held
by such insurgents, or even when attacking ports in the possession of the
Ifational Government. In the late civil war, the United States, at an early
period of the struggle, surrendered the position'that those manning the
Confederate cruisers were pirates under international law. The United
States of Colombia cannot, sooner or later, do otherwise than accept
the same view. But, however this may be, no^eutral power can acqui-
esce in the position now taken by the Colombian Government. What-
ever may be the demerits of the vessels in the power of the insurgents,
or whatever may be the status of those manning them, under the mu-
nicipal law of Colombia, if they be brought by the act of the National
Government within the operation of that law, there can be no question
that such vessels, when engaged as above stated, are not, by the law of
nations, pirateSj nor can they be regarded as pirates by the United
States."

Mr. Bayard. Sec. of State, to Mr. Becerra, Apr, 9, 1885. MSS. Notes, Colom-
bia; For. Eel., 1885.

"The status of purpose or of employment, which the Government of
^lombia seeks to create against such vessels by decreeing them to be
pirates, is, of course, wholly distinct from their inherent status as ytoat-
^praperty. On this latter point we are not as yet, adequately in-
formed. The commanders of the naval vessels of the United States on
the Colombian coast have, however, been told that if conclusive proof
be shown that any vessels belonging to citizens of the United States
kAve been unlawfully taken from them, the recovery of such property
by the owners, or by others acting in their behalf, to the end of its res-
toration to their legitimate control, is warrantable.^
/Wd.

" Pending these occurrences a question of much importance was pre-
sented by decrees of the Colombian Government, proclaiming the clos-
ure of certain ports then in the hands of the insurgents, and declaring
vessels held by the revolutionists to be piratical and liable to capture
by any power. To neither of these propositions could the tJnited States
assent. An effective closure of ports not in the possession of the Gov-
ernment, but held by hostile partisans, could not be recognized ; neither
could the vessels of insurgents against the legitimate sovereignty be
deemed hoates humani generis within the precepts of international law,
whatever might be the definition and penalty of their acts under the

467

§ 381.] PIEACY AND PRIVATEERING. [CHAP. XX.

manicipal law of the state against whose authority they were in revolt.
The denial by this Government of the Colombian propositions did not,
however, Imply the admission of a belligerent status on the part of the
insurgents. The Colombian Government has expressed its willingness
to negotiate conventions for the adjustment, by arbitration, of claims
by foreign citizens arising out of the destruction of the city of Aspin-
wall by the insurrectionary forces."

President Cleveland, First Annaol Message, 1685.

That Tessels sent from foreign ports by insurgents having no portsof their own.

are pirates is argned by Mr. Seward, Sec. of State, to Mr. Dayton, Nov. 21,

1663. M8S. Inst.,' France.

On the other hand, it is no defense to an indictment against a citi-
zen of the United States, for statutory piracy, for taking a privateer
commission from foreign insurgents not recognized by us as belliger-
ents, that the depredations charged were under the color of sach com-
mission.

1 Op., 251, Wirt, 1818.

Nor can this Government recognize as privateers, entitled to the im-
munities of such, vessels owned and manned by its own citizens, it be-
ing neutral, for an attack on a foreign or friendly power.

*'The Government of the United States is prohibited by the laws of
the Union from recognizing as a lawful Colombian privateer any vessel,
commanded, officered, and manned chiefly by citizens of this Union."

Mr. Adams, Sec. of State, to Mr. Anderson, Jnne 29, 1824. MSS. Inst., Minis—

ters.
As to the question of cruisers of insurgents not recognized as belligerents,

f lepra, $$ 69, 70.

Ln April 24, 188.5, the brigantine Ambrose Light, carrying the Colom.
bian flag, and claiming to be commissioned as a vessel-of-war by "Pe
droa Lara, governor of the pro vice of Baranquilla, in the United States
Colombia, with full powers conferred by the citizen president of the State^
was seized by the United States gunboat Alliance about twenty miles
the westward of Cartagena, and was taken to New York for adjndica'
tion as a prize. The "Government," by whom the Ambrose Light was
commissioned, while in possession of several important ports of Colom-
bia, and blockading others, did not claim title under the titular Govern-
ment of Colombia, acknowledged as such by the United States, but was
organized by insurgents against that Government. On the hearing of
the libel to procure the condemnation of the Ambrose Light, the procfe
showed, according to the report of the case given in the Federal Be-
porter of December 8, 1885, (1) "that she had been sold to, and legally
belonged to, Colente, one of the chief military leaders of the inapr^ents
at Baranquilla;" (2) that "none of her officers or crew were citizens of
the United States;'' (3) that "she was engaged upon a hostile expedi-
tion against Cartagena, and designed \0 assist in the blockade and siege
of that port by the rebels against the established Government;'' (^)
that she was instructed "to fight any Colombian vessel not showing the
white flag with a red cross;" (5) that "Sabanilla and a few other ad-
jacent sea-ports in the province of Baranquilla, including the citjof

468

CHAP. XX.] INSURGENTft) NOT PIRATES. [§ 381.

Baranquilla, had been for some months previous, and still were, under
the control of the insurgents;" while (6) "the proofs did not show that
any other depredations or hostilities were intended by the vessel tban
such as might be incident to the struggle between the insurgents and
the Government of Colombia, and to the so-called blockade and siege
of Cartagena."

It appears also that the correspondence between Mr. Becerra and Mr.
Bayard was treated at the hearing as part of the evidence in the case.
On this state of facts, Judge Brown, to adopt the statement in the care-
fully-drawn head-notes given in the Federal Keporter, held that "in the
absence of any recognition of rebel belligerency, or of an existing state
of war in Colombia, either by that Government or by any other nation,
the rebel commission of their own vessel as a vessel-of-war was, in the
eye of international law, unauthorized and void ; that the seizure of the
vessel as piratical was technically authorized by the law of nations ;
hut that the implied recognition of an existing state of war in the Secre-
tary's letter of the same date prevented any condemnation of the vessel ;
bat that as. her seizure was lawful at the time, her release should be
ordered on the payment of the disbursements of the proceeding." •

lu a review of this decision by the Solicitor of the Department of
State, pablished in the Albany Law Journal, for Februaiy 13, 1886, the
followiug points are made:

"When we are notified, as we were in the present case, by a foreign
^vereign that an armed insurrection is in existence within his domains,
the fact is one of which we are bound to take notice. We cannot, it is
tnie, give such insurgents hospitality yi our ports ; nor do we release
tlieir titular sovereign, as we would do in case we recognize their bel-
'igereucy, from i esponsibility for their acts. But while such is the case
^e respond to such an announcement by applying to him and to them
thenile of non-intervention in foreign disturbances on which our whole
fjstem of extraterritorial policy rests. • • • We recognize foreign
jiisurgeucy by refusing to send our military and naval forces to attack
|ts armies or its |ieets, and by refusing to deliver up those concerned in
it when they take refuge on our shores. We say in such cases to the
titular Government, whether it be despotic or liberal, 'We cannot in-
tervene to fight your battles, either on land or at sea; neither will we
^Qrrender political fugitives who have escaped from you to our ships or
^^ shores.' But a recognition of foreign belligerency is a very different
tMng. It is never determined on until an insurrection has obtained
permanency, and stands on something like settled parity with the Gov-
ernment it assails. Such a recognition is announced by a proclamation
<^f neutrality, and is followed by placing insurgent and titular Govern-
^ents^n the same terms of access to the ports of the sovereign by whom
the proclamation has been issued. Hence while in very man}' cases we
kave recognized foreign insurgencies, we have never recognized such
hisurgencies as belligerent until they have shown themselves, by long
8i|(l enduring exhibition of strength, to be on something like a "parity
^ith the state against which they jevolt. The Government of the
United States unquestionably recognized the insurgency of the forces
arrayed in April last against the Colombian titular Government. But it
expressly declares that it did not recognize their helligerency. • • •

"I wish now to inquire what is the definition of piracy to be drawn
^m those who may really be considered standard authors in interna-
tional law. It so happens that 1 have before me letters on this toyic
^m Mr. Flore, professor of international law at li^aple^ *, troxxi ^x.

469

.«l

§ 381.] PIRACY AND PRIVATEERING. [CHAP XX.

Westlake; from M. Martens, professor of international law at St. Peters-
burg; from Baron de Neumann, professor of international law at Vienna^
and member of the Austrian House of Peers } and from M. Calvo, Ar-
gentine minister at Berlin. These gentlemen are all of them authors of
high standing in international law, and are leading members of the In-
stitute of International Law, in which I have the honor to be one of
their associates. 1 sent them the note of Mr. Bayard to Mr. Beeerra
shortly after it was made public, and as is not unusual among the mem-
bers of the institute, some of them were good enough to favor me with
replies, written, I need scarcely say, some time before Judge Brown's
decision was made known. In these replies the distinctions taken in
Mr. Bayard's notes are unequivocally sustained. From M. Calvo's let-
ter of June 5 last (and I believe I could cite no higher authority) I quote
the following:

'^ ^The government, the tranquillity and the existence of which are im-
perilled by rebellion, is sovereign, as no one denies, in punishing and
repelling by all the foirces it possesses the attacks directed against it;
but it does not suffice that it should attach to these attacks the title of
piracy, in order that the rebellion should be transformed, ipso faeto^ as
regards foreign states, into a crime against the law of nations, punish-
able as such. These states can, at most, look on these acts as those of
belligerents, especially if the rebellion is prolonged, assumes a serions-
^form, and partakes clearly of the character of civil war. If the rebel
ship.s do not limit themselves to attacking the Oovernment or the forces
of tbi» Government against which they have rebelled, but commit acta
of hosiility or of damage against ships of other nations, these nations
have then the right to obtain direct satisfaction by seizing them and ii^
flicting the customary punishment on them, in conformity with the hi'v
of nations, or indirect, by handing them over to the Government wbo6^
allegiance they have thrown off by rebellion. It is then from this Go ^
ernment that the reparation is to be expected, which we have the nf'^
to ask for the wrong done, or the injury experienced. The note of M^
Bayard of April 24. 1885, is one precedent more in favor of the libexf
doctrines which are becoming more and more prouounped regardiu^^ t4r
important question of blockade, and the diminution of the rights of tuf
ligerents in reference to those of neutrals, and to the liberty of intf
course and of navigation ; and a tribute is due to the Goverument^J
Washington that it has constantly and faithfully taken the side of prf
ress in this respect whenever it has found an opportunity.' • • ^

^'The works of the authors of which I speak, are of the highest n
among such standards, and the letters of the auth6rs are the bestj
terpreters of what their works say. But I pass these to take up
other authorities whom I select, because they undertake rather to
the sense of international jurists as a body rather than their 6wu^
tinctive views. I

^' The first is Holzendorff in his Encyklopadie der Kechtswisseod
a work of singular accuracy and fullness. In this work we havff
following: • f

" ^Seeraub (piraterie, piracy), ein Verbrechen, bestehend in dem/
erish gewaltsamen Angriff gegen Handelsschiffe auf hoher See.' 7
lating literally, this makes ' sea-robbery,' and the very title is f
cant, to consist in a forcible attack for purposes of robbery Cf
chant vessels on the high seas. He goes on to say that the offei
crime by the law of nations ; that the ' sea-robber' is hostis humj

CKAje. XX.] INSURGENTS NOT PIRATES. [§ 381.

erUy who may be tried in any state into which he may be brought, and
when canght in the act, may be forthwith killed by the captor.

"Among the admirable qualities of the late Sir K. Phillimore not the
least distinguished was the patient impartiality with which he collected
the sense of that branch of the profession of which for years he was the
leading English representative. And Sir E. Phillimore (1 Int. Law,
488) gives the following definition : * Piracy,' he says, ' is an assault
upon vessels navigated on the high seas committed animo furandi^
whether the robbery or forcible depredation be effected or not, and
whether or not it be accompanied by murder or personal injury.' He
proceeds to quote Judge Story's statement in U. S. v. Smith (5 Wheat.,
163), that ^whatever may be the diversity of definitions in other re-
spects, all writers concur in holding that robbery or forcible depreda-
tions upon the sea, animo furandi^ is piracy.' He cites further a ruling
of < the judge of the vice-admiral^ court at Charleston, S. C, in 1718,
that piracy is a robbery committed on the sea, and a pirate is a sea-
thief.' He shows also that the ruling of Dr. Lushington, in the case of
Ibe Magellan pitates (10 Jurist, 1165) was based, not on the position
that the offenders in question were insurgents who had not been recog-
nized as belligerents, but on the proof that their depredations were di-
rected against others than their titular sovereign. ^I thinic it does not
foUotr,' he quotes Dr. Lushington, in giving his judgment in that case,
as saying, that ^ because persons who are rebels and insurgents may com-
mt against the ruling powers of their country acts of violencCy they may
not 6e, as well as insurgents and rebels^ pirates also ; pirates for other a^ts
committed against other persons,^ "
The same view, it is held, is taken by Perels. (Seerechty § 127.)
'* President Woolsey holds that the Confederate privateers, even from
the standpoint of the United States, were not pirates (Int. Law App.,
3, note 12 to 4th ed.); and in section 137 of the third edition President
Woolsey defines piracy in such a way as expressly to exclude acts of
War by insurgents against their parent state. The same positvou was
JDaintained with great ability and learning by the late Mr. W. B. Law-
rence, who was a master in this branch of jurisprudence. (Lawrence's
Wheaton, 209, 246, 247, 248, 256, and note, furnished by Mr. Lawrence,
to Whart. Cr. Law (8th and 9th ed.), § 1861.)

''The definitions of Mr. D. D. Field (Int. Code, 82) and of Sir J. F.
Stephen (Dig. Gr. Law, art. 104) expressly exclude attacks by insur-
gent vessels on their titular sovereign."
'*In Hall's International Law, page 223, the law is thus stated :
^'4t is generally said that one of the conditions of the piratical char-
^ter of an act is the absence of authority to do it derived from any
^verelgn state. Different language would no doubt have been em-
ployed if sufficient attention had been earlier given to societies actually
independent, though not recognized as sovereign. Most acts which
become piratical through being done without due authority are acts of
^ar when done under the authority of a state, and, as societies to which
^lligerent rights liave been granted have equal rights with perma-
nently established states for the purposes of war, it need scarcely be
^i(l that all acts authorized by them are done under due authority,
^lieiher the same can be said of acts done under the authority of
politically organized societies, which are not yet recognized as belliger-
ent, may appear more open to argument, though the conclusion can
kwtily be <iifferent. Such societies being unknown to international
Iaw, they have no power to give a legal character to acts of any kind.

47^

^§ 381.] PIRACY AND PRIVATEERING. [CHAP. XX.

At first sight, coDsequently, acts of war done under their authority
must seem to be at least technically piratical. But it is b^' the per-
formance of such acts that independence is established and its exist-
ence proved. When done with a certain amount of success, they just-
ify the concession of belligerent privileges; when so done as to show
that independence will be permanent, they compel recognition as a
state. It is impossible to pretend that acts which are done for the pur-
pose of setting up a legal state of things, and which may in fact have
already succeeded in setting it up, are piratical for want of an external
recognition of their validity, when the grant of that recognition is
properly dependent in the main upon the existence of such a condition
of afiairs as can only be produced by the very acts in question. It'
would be absurd to require a claimant to justify his claim by doing acts
for which he may be hanged. Besides, though the absence of the com-
l)etent authority is the test of piracy, its essence consists in the pursuit
of private as contrasted with public ends. Primarily the pirate is a
man who satisfies his personal greed or his personal vengeance by rob-
bery or murder in places beyond the jurisdiction of a state. The man
who acts with a public object may do like acts to a certain extent, but
his moral attitude is different, and the acts themselves will be kept
within well-marked bounds. He is not only not the enemy of the
human race, but he is the enemy solely of a particular state. • • •
The true view, then, would seem to be that acts which Hre allowed in
war when authorized by a politically organized society are not pirati-
cal. Whether a particular society is or is not ]>olitically organized is a
question of fact which must be decided upon the circumstances of the
case.' Hall's Int. Law, 233 ff.

" Under Mr. Wheaton's definition, to make cruisers of insurgent Gov-
ernments pirates, they must be * depredators.' That this is all he
meant by his definition, is clear when we take in connection with it his
reference to United States v, E^lintock (6 Wheat., 153), where the court,
according to Mr. Wheaton's own head-note, declined to decide whether
the term * piracy ' applies to ^a person acting with good faith under
such a commission,' i. e., a commission from 'a republic whose existence
is unknown and unacknowledged.' Nor can we exclude from consid-
ering, as construing Mr. Wheaton's statement in his text- book, the note
on piracy (in 6 Wheat., 167), to which he refers us ; a note which binds Mr.
Wheaton, the ostensible author, none the less completely from the fact
that it was written for him, as it is now known, by Judge Story. In
this admirable note we have a long series of definitions, nearly thirty in
number, in all of which the essential feature of piracy is declared to be
robbery on the high seas. So, according to this note, speak Grotius, the
old Koman jurists, Bynkershoek, Azuni, Bacon, Martens, Butherforth,
Woodeson, Burlamaqui, Calvinus, Bouchard, Bonnemont, Ferrier, the
authors of the Encyclopedic des Sciences (who define pirates as
"bMudits" of the sea), Valin, Straccha, Beawes, MoUoy, Marshall, the
author of Vinei"'s Abridgment, Comyn, Coke, Targa, Blackstone, and
Hawkins. The definition of Hawkins I here copy, not only bex^us^
it is the most accurate, but because it has been virtually adopted by Sir
J. F. Stephen :

^' ^A i)irate, at the common law, is a person who commits any of those
acts of piracy, robbery, and depredation upon the high seas which if
Gonimitted upon land would have amounted to felony there.' And to
this the note adds this comment: 'The intention of Hawkins must
have been to use the phrase ''at common law" in its most comprehen-

472

• XX.] INSURGENTS NOT PIBATES. * [§ 381.

«ive sense; iu which sense the law of nationlB itself .. iS(part of the com-
mon law.'

The conclusions given are as follows:

"1. We ought not,in cases of insurrections in foreign countries, to
acknowledge insurgents as belligerents until the insurrection estab-
lifishes itselt on such a basis of apparent permanency to put it, at least
for a time, on an apparent paritj' with the parent state. When such
a coudition of things is manifest, then a proclamation of neutrality
i»huiild be issued, and the insurgent vessels admitted to the same rights
in oar ports as are those of the Government which they assail.

•^2. We ought not, in any case, to interfere to suppress insurrections
in foreign states by attacking either the land or the maritime forces of
the insurgents. To do so would be to cast aside that policy of non-in-
terference in foreign systems which we have heretofore followed with
scrupulous conscientiousness, would render us in most cases the sup-
porters of despotisms as atrocious as those of Yturbide, of Francia, or
of King Bomba, and would, when the interference was attempted on
behalf of the weaker Southern American Governments, throw such
Oovernments permanently on our hands, and thus subject us to bur-
dens our system could not bear. To this policy of interference there
should be but two exceptions. We should interfere to prevent any
European power from efiecting a new lodgment on this continent. We
should interfere also on the Isthmus when necessary to carry out
our treaty guarantee of free transit. But beyond this our interference
cannot go. No matter how vehement may be the decrees of foreign
Oovernments declaring insurgents to be traitors and pirates, those de-
crees it should not be for us to execute."

Mr. Dana (Dana's Wheaton, 193, note) adds the following to Mr.
Whea ton's definition of piracy :

'* It must be admitted that the attempted definitions of piracy are
unsatisfactory ; some being too wide and some too narrow. The au-
thor's description, rather than definition, is perhaps the most adequate.
Some writers, and even judges, seem to have treated the phrase ' hostia
UMinani generiSj^ as if it were a definition of piracy. Dr. Tindal (How-
ell's St. Tr., xii, 1271, 1272, note), in the case of the privateers of
James II, reports this point as made and overruled, and says : ^ It is
neither a definition, nor as much as a description of a pirate, but a the-
oivtical invective.' It is true, that a iniate, jure geiitiuni, can be seized
aud tried by any nation, irrespective of his national character or that
of tlie vessel on board which, against which, or from which the act-
vasdone. The reason of that must be that the act is one over which
all naiions have equal jurisdiction. This can result only from the fact
to it is committed where all have a common, and no nation an exclu-
sive, jurisdiction, i. e., upon the high seas ; and, if on board ship, and by
Wowu crew, then the ship must be one in which no national authority
f^us. The criminal may have committed but one crime, jind inten<led
None, and that against a vessel of a particular nation; yet, if done
^^ the high seas, under certain circumstances hereafter to be referred
^ he may be seized and tried by any nation. In such a case it cannot
^necessary to satisfy the court affirmatively, as a fact, that he had a
Purpose to plunder vessels of all nations, or vessels irrespective of na-
^Quality ; nor would the court be driven to an artificial presumption of
^^ contrary to the facts in the case, that such general hostile purpose'
^listed.

473

§ 382.] PIRACY AND PRIVATEERING. [CHAP

" On the other hand, that is too wide a definition which wouW
brace all acts of plunder and violence, in degree sufficient to const
piracy, simply because done on the high seas. As every crime uu
committed at sea, piracy might thus be extended to the whole crii
code. If an act of robbery or murder were committed upon one o:
passengers or crew by another in a vessel at sea, the vessel ben
the time, and continuing, under lawful authority, and the offender
secured and confined by the master of the vessel to be taken horn
trial — this state of things would not authorize seizure and trial by
nation that chose to Interfere, or within whose limits the offender n
afterwards be found."

In Mr. Fishes note to Admiral Polo de Bernab^, April 18, 1874 (^
Kotes, Spain (For. Bel.), 1874), he adopts Mr. Dana's note, as g
above, accepting that definition, and closing with the words, ^Md si
they must be in the predicament of outlaws." Hence, those conce:
in the enterprise of the Virginius were not pirates at common law.

The case of the Huascar, which is sometimes referred to in thii
lation, is as follows :

The crew of a Peruvian monitor, the Huascar, anchored at Ga
revolted on May 6, 1877, and declared for the insurgent Governmei
Pierola. The Huascar proceeded to sea without opposition from €
Peruvian vessels in the harbor. On May 8 the titular Govemmei
^eru issued a decree calling the Huascar crew *^ rebels," and auth
mg her capture. The Huascar then stopped several British vessels^
ing out of one of them two officers who were going to Peru to enter '
ernment service. The British admiral on those coasts being advis<
these proceedings, and also of the seizure of certain lighters of coa
longing to British subjects, sent the Shah, a British cruiser, to s<
seize the Huascar. An engagement took place, which was only
tially successful, the Huascar ultimately eluding her assailant.
Huascar subsequently surrendered to Peru, and Peru claimed inden:
from Great Britain for the conduct of the British admiral. The
officers of the Crown, on the question being referred to them, held
as the Huascar was sailing under no national flag, and was an
sponsible depredating cruiser, approved the conduct of the adn
When the question came up before the House of Commons, the a
ney-general maintained that the Huascar was a rover committing
redations on foreign shipping. It would have been otherwise, be
ceded, if there had been an existing rebellion entitled to the righ
belligerency.

1 Halleck's Int. Law, note (Baker's ed.), S-^Q. See criticism in 2 Calvo, 3c

302.
As to status of United States citizens who enlist in the service of an iDsoi

power, see supra, $ 69.

II. MUNICIPAL DEFimnONS NOT EXTRATERRITORIAL.

§ 382.

A municipal definition of piracy, expanding or contracting the del
tion of the law of nations, has no extraterritorial effect.

See »apra, ^ 9, and cases cited in $$ '^Mi, 3S1.

474

CTHAP. XX.] PKIVATEERS. [§ 383.

The British position that American citizens employed on French pri-
vateers m the war with revolutionary France were pirates, is in conflict
-with settled principles of international law.

Mr. Randolph, Sec. of State, to Mr. Hammond, Oct. 23, 1794. MSS. Notes,
For. Leg. •

IJo prosecutions for pii;acy were instituted against prisoners taken
from such privateei'S.

For British statate, see supra, ^ 381.

The French decree of June 6, 1803, " importing that every privateer
of which two-thirds of the crew should not be natives of England, or
suhjects of a power the enemy of France, shall be considered a pirate,'^
is in contravention of the law of nations.

Mr. Madison, Sec. of State, rej^rt Jan. 25, 1806. MSS. Dom. J^t.

III. PRIVATEERS. *

(1) Who arb.
§383.
Ab to arming of merchant vessels, see supra, $ 40.

• ** The term privateer is understood not to extend to vessels armed for
merchandise and war, commonly called with us letters of marque^ nor, of
course to vessels-of-war in the immediate service of the Government of
either of the powers at war."

Mr. Hamilton's circular of Aug. 4, 1793. 1 Am. St. Pap. (For. Kel.), 140.

^^ Though a merchant vessel has arms to defend herself in time of war,
^ the course of her regular commerce, this no more makes her a priva-
t^r than a husbandman following his plow in time of war, with a knife
^ pistol in his pocket, is thereby made a soldier."

Mr. Jefferson, Sec. of State, to Mr. Morris, Ang. 16, 1793. MSS. Inst., Minis-
ters. 1 Wait's St. Pap., 147 ; I Am, St. Pap. (For. Rel.), 167.

Under the general term "privateers'' are enumerated the following :
(1). Naval officers taking charge of merchant vessels and cruising xm-
fler the direction of their sovereign in time of war. (2) Officers of mer-
<^haDt vessels, subjects of a belligerent state, cruising under commission
from their sovereign in time of war. (3) Volunteer officers of merchant
^^ssels cruLsing against the enemy of their sovereign, but without any
^ttimissiou from their sovereign. (4) Subjects of neutral states taking
^^t, for the purpose of preying on the commerce of one belligerent, com-
^isaioQs for this purpose from the other belligerent.

Of these Nos. (1) and (2)'do not technically fall under the head of
"privateers'' according to the position tciken by the British Govern-
^^nt in 1870, as stated in the text. If so, it is hard to see bow officers
^^ merchant ships, volunteering as cruisers for their sovereign, can be
^garded as pirates by the law of nations. In the final uprising against
Napoleon in Germany numberless parties of such volunteers took partf
^nd in our own Revolutionary War, volunteer local troops, in periods of

415

§ 383.] PRIVATEERING. [CHAP. XX.

great emergency, frequentlj' took tbe field, and were recognized as bel-
ligerents, though without commission from the sovereign. "Priva
teers" falling under the bead of No. (4), however, must be regarded as
mere adventurers in search of plunder, and tbe recognition of such as
belligerents, if not prohibited by the law of nations, is prohibited by
the distinctive laws of the United Sftites. This distinction is taken bv
Mr. Butler-Johnstone in his Handbook of Maritime Rights (London,
1870), 12. . (See tn/m, § 384^

By Swift, a i)rivateer is defined to be an armed vessel, belonging to
one or more private individuals, licensed by Government to take prizes
from an enemy.

In Wilhelm's Military Dictionary, (Phil., 1881), the name " Partisan"
is stated to be given to " small corps detached from tbe main body of an
army, and acting independently against the enemyt In partisan war-
fare much liberty is allowed to partisans." Bur if so in military, why
not in naval warfare f The objection is to the plunder of private prop-
erty on the high seas, against which the United States have always
remonstrated, not to the particular agency employed.

In McCuUoch's Commercial Dictionary, London, 1882, privateers are
defined to be "shipsof-war fitted out by private individuals to annoy
and plunder the enemy. But before commencing their operations, it is
indispensable that they obtain letters of marque and reprisal from the
Government whose subjects they are, authorizing them to commit hos-
tilities, and that they conform strictly to the rules laid down for the
regulation of their conduct. All private individuals attacking others
at sea, unless empowered by letters of marque, are to be considered,
pirates."

Whart. Com.Am. Law, $ 201, note.

"A private armed vessel or privateer is a vessel owned and officered
by private persons, but acting under a commission from the statei
usually called letters of marque. It answers to a company on lauc
raised and commanded by private persons, but acting under rules fron
the supreme authority, rather than to one raised and acting withoif
license, which would resemble a privateer without commission. Ti
commission, on both elements, alone gives a right to the thing capture!
and insures good treatment from tbe enemy. A private vessel levyil
war without such license, although not engaged in a piratical ai
would fare hardly in the enemy's bands." ,

WooUey's Int. Law, $ 121. ^

*'By tbe laws of most of the nations of Europe, the owners of private
are required to give bond and security, in amount from $8,000 to $12,1
to comply with the regulations concerning their cruii^ing, and to|
vent them from committing illegal acts." (

I De Bow'h Rev., 517. ^

A privateer's commission fraudulently obtained is, as to vestiuf
interests of prize, utterly void. But a coi&mission may be lawfulf
tained, although the parties intended to use it as a cover for fl
purposes. If a commission is fairly obtained, without impositi
fraud upon the officers of Government, it is not void merely becao
parties privately intend to violate, under its protection, the M

476 f

CHAP. XX.] PBIVATEERS NOT PIRATES. [§384

their country. A collusive capture conveys no title to the captors^
not because the commission is thereby made void, but because the cap-
tors thereby forfeit all title to the prize property.

The Experiment, 8 Wheat., 261. See tuprat J^ 381.

(2) Not pikates bt ulw or nations.

§384.

Privateers of powers recognized as belligerents are not pirates by the
law of nations.

Harlan, J., Ford r. Snrge't, 97 U. 8 . 619 ; citing Dole. v. Ins. Co., ^ AUod, 373 ;
Planters' Bank v. Union Bank, 16 WaU., 483; S. P., U. S. v. Baker, 5 Blatch.,
6 ; Fifield v. Ins. Co., 47 Pa. St., 166, and other cases.

"' The right to resort to privateers is as clear as the right to use pub-
tic armed ships, and as incontestable as any other right appertaining to
to belligerents."

Mr. Marcy, Sec. of State, to Mr. Sartiges, July 26, 1856. MSS. Notes, France.

A privateer cannot be regarded as a pirate because she is manned
^d operates under an ordinance authorizing foreigners to fit out and
take commissions as privateers from the state issuing the ordinance,
and to take enemy's property out of neutral ships.

T) J. Q. Adams's Memoirs, 383-385.

''That two points in the declaration (of Paris) upon which, as already

^marked, considerable light has been thrown during the Franco-German

^ar of 1870, are the interpretation that is to be given to the term ' la

^^^Qrse/ which occurs in the first resolution, and likewise the interpre-

^tion to be given to the term * contraband of war,' which occurs in the

^^ud ^nd third resolutions. The phrase ' la course ' dates from a

Period when it was the practice of states, whenever there was occasion

^0 have recourse to an armed expedition on the high seas against an-

^^her state, to grant letters of marque to the commanders of private

^niisers, authorizing them to make reprisals against the vessels and

^^rgoes of the subjects of the other state. By-andby commissions of

^•'^rcome to be issued by sovereign princes to private ships fitted out

?ither by their own subjects or by the subjects of other powers, so that

^t Was competent for a power which had no public ships-of-war of it*

^^n to harass the commerce of its enemy by issuing letters of marque

*^d reprisals not merely to vessels of its own subjects, but to the vessel*

P^the subjects of other powers, and when commissions of war came to

^ granted to both classes of such vessels in the sixteenth century,

^bey had lawful authority to exercise belligerent rights against neutral*

^^ well as against the enemy. It can well be imagined, as the crews

i ^*' such ships were brought together by the prospect of plunder, and

^«re QDder no naval discipline, that when a single corsair or privateer

^Qve in sight on the high seas, it caused a greater terror to a neutral

Merchant ship than a fleet of public ships-of-war.

" In the present century, however, as the practice of states in in-
^sting their defense on land to regiments of foreign origin serving
^em for pay has generally been discarded, so the practice of granting

«7

§ 384.] PRIVATEEEING. [CHAP. XX.

commissions of war to the subjects of foreign states serving for plunder
has fallen into disrepute, to say nothing of the license of maritime war-
fare so conducted being intolerable to the civilization of the present
age. That a main object, which the two allied powers in the wai* of
1854 against Russia had in view, was to put an end to the practice of
belligerents issuing letters of marque and reprisals to the subjects of
neutral states, is confirmed by the memoir of M. Drouyn de Lhuys,
already mentioned.

" ' What influenced especially the English Government was the fear
of America inclining against us, and lending to our enemies the co-opera-
tion of her hardy volunteers. The maritime population of the United
States, their enterprising marine, might furnish to Eussia the elements
of a fleet of privateers, which, attached to its service by letters of marque
and covering the seas with a network, would harass and pursue our
commerce even in the most remote waters. To prevent such a danger
the Cabinet of London held it of importance to conciliate the favorable
disposition of the Federal Government. It had conceived the idea of
proposing to it at the same tiipe as to the French Government and to
all the maritime states, the conclusion of an arrangement, having for
its object the suppression of privateering, and permitting to be treated
as a i)irate every one, who in time of war should be found furnished
with letters of marque. This project, which was in the end abandoned,
i8 evidence of the disquiet fell by England. We thought, as they did,
refcspecting privateering, a barbarous practice which marked too often,
under an appearance of patriotic devotion, violence excited by the al-
lurement of lucre. At former epochs, justified by the fury of war, it
was able in the midst of numerous iniquities, to give rise to some heroic
a(;ii(>n, to transmit even to history some glorious names. But we con-
sidered it to be incompatible henceforth with the usages of civilized
nations, which cannot allow private persons to be armed with the rights
of war, and which reserve their terrible application to the public power
of established states.'

'^Such was the object in view of the allied poweis in the war against
Russia, according to the highest authority. We find also a statement
from the same authority, namely, the French minister for foreign
affairs, in his report to the Emperor of the French, of 29th March, 18^,
that the motive of the allied powers was to mitigate the disastrous
eft'ects of war upon the commerce of neutral nations and to relieve it
from all unnecessary shackles, and accordingly the Emperor of the
French published a declaration, at the conclusion of which he announced
that he had no intention to deliver ' lettres de marque pour antoriser
les armements en course.' On the other hand, the British Government
issued a corresponding declaration on 28th March, 1854, annoancing
that it was not the intention of the Queen of the United Kingdom to
issue letters of marque for the commissioning of privateers.

'< No occasion for the interpretation of the first article of the decla-
ration of Paris of 1856 arose in its application to a war, in which both
the belligerent parties were signatories of that declaration, before the
Franco German war of 1870, when the Prussian Government issued a
decree (24th July, 1870) relating to the constitution of a volunteer
naval force. Under that decree the King of Prussia invited all Ger-
man seamen and shipowners to place themselves and their forces and
ships suitable thereto at the service of the fatherland. The oflScers
and crews were to be enrolled by the owners of the ships and were to
enter into the federal navy for the continuance of the war, and to wear

478

CHAP. XX.] PRIVATEEKS Kt)T PIRATES. [$> 384.

its aniform and badge of rank, to acknowledge its competence and to
take an oath to the articles of war. The ships were to sail under the
federal flag and to be armed and fitted out for the service allotted to
them by the federal royal navy. The ships destroyed in the service of
their country were to be paid for to their owners at a price taxed by a
naval commission, and a sum was to be paid by the state as a deposit,
when the ships were placed at the service of the state, which, at the end
of the war, when the ships were restored to their owners, was to be
reckoned as hire. The French Government, regarding the institution by
Prussia of a volunteer naval force as the revival of privateering under a
disguised form, lost no time in calling the attention of the British Gov-
ernment to the Eoyal Prussian decree, as instituting an auxiliary marine
contrary to Prussia's engagements under the declaration of 1856. Earl
Granville, on behalf of the British Government, referred the matter to the
law officers of the Crown, and in accordance with their opinion returueti
for answer, ' that there was a substantial difference between the proposed
naval volunteer force sanctioned by the Prussian Government and the
Kvjitem of privateering which, under the designation of " la course," the
declaration of Paris was intended, to suppress, inasmuch as the vessels
referred to in the Koyal Prussian decree would be for all intents and
purposes in the service of the Prussian Government, and the crews
would be under the same discipline as the crews on board vessels belong
in«: i)ermanently to the federal navy.' Upon these considerations the
Bi itish Government could not object to the decree of the German Gov-
ernment as infringing the declaration of Paris. (Brit, and For. St. Pap.,
Ixi, 692. Perels, Manuel de droit maritime international, 195; Paris,
ISM.)

'^ There is not an unanimity of opinion amongst text writers on inter-
Datioual law on the subject of this Prussian auxiliary marine, as to
whether its institution was in conflict with the declaration of Paris or
DOt. M. Charles Cal vo, ancien ministre, considers that vessels equi pped
in accordance with the Prussian decree may be regarded as privateers
of an aggravated character, seeing that the owners are not required to
give security for their good conduct (Le droit international, 3me ed.,
tome iii, 303; Paris, 1880); and Mr. W. E. Hall, in his recent work on
International Law, p. 455, observes that ' unless a volunteer navy could
be brought into closer connection with 1 he state than seems to have been
the case in the Prussian project, it would be difficult to show that its
establishment did not constitute an evasion of the declaration of Paris.'
But neither of these eminent publicists seem to have given sufficient
weight to the provisions of the Prussian decree, under which the officers
and crew were required to enter into the federal navy for the continu-
ance of the war, were to wear its uniform, and to take an oath to the
articles of war. Further, the vessels were to be fitted out by the state,
and were to sail under the public flag of the state^

^*On the other hand, Professor Geffcken, in his recent edition of
Heffter's Droit International de I'Europe (Paris, 1883), p. 278, and Dr.
Charles de Boeck, in his masterly treatise on enemy's property under an
enemy's flag, have recognized a broad distinction between such an aux-
iliary force, which under the Boyal decree was intended to be employed
solely against the enemy, and privateers, which may be of no matter
what nationality, and whose main object it has always been to prey
u|H)n neutral commerce, keeping up the worst traditions of private war-
fare under cover of letters of marque. It should be observed that the
Prussian Government never gave practical effect to the Eoyal decree on

479

§ 385.] PRIVATEERING. [CIIAP, XX.

this subject, and that no vessel of the ^seewehr,' as institated iu 1870^
«ver put to sea. (Staats Archiv., 4345, 4346.) ^

Sir T. Twiss, Belligerent Rights, ^c, London, 1884. See as to action of Ger-
man GoTemment, infra, $ 385. *

•

''On the sea all the subjects of one belligerent are the enemies of all
the subjects of the other, and entitled to do all such acts as war justifies
between the belligerent powers themselves. Hence, whilst there may
be impediments in the way of a private uncommissioned ship retaining
the captures it may make, or disposing of them iu any way it may please,,
those impediments arise from the enactments of municipal law^ and are
not imposed by international law, which in no way affects this question.
But, secondly, if a private ship belonging to one of the belligerenta
attack and capture the vessel of a neutral power, without a commission
of war, the case is widely different. Here the attacking vessel may be
treated as a pirate by the vessel attacked, or by any vessel coming to
her aid.'^

Abdy'8 Kent (1878), 227.

(3) SCSTAimSD BY POLICY OF THB UnITKD STATBS.

§ 385.

•

Under the construction adopted by General Washington's adminis-
tration of the 19th article of the French -American treaty "^rirateer*
only of the enemies of France were absolutely excluded from our ports,
except, as before, when compelled to enter through stress of weather,
pursuant to the 22d article of the treaty, while the nationaZ ships of any
other nation were entitled to an asylum in our ports, excepting those
which should have made prize of the people or property of France coming
in with their prizesJ^

Mr. Pickering, Sec. of State, to Mr. Pinckney, Jan. 16, 1797. MSS. Inst., Min-
isters.

By the act of July 9, 1798, privateers were required to give security
iu $14,000, if the vessel carried more than one hundred and fifty men^
and in half that sum if she carried less.

** The United States Government, in 1812, issued the following in-
structions to commanders of American privateers :

^^'The high seas referred to in 3 our commission you will understand
generally to refer to low-water mark ; but with the exception of the
space within one league, or three miles, from' the shore of countries at
peace, both with Great JBritain and the United States. You may, nev-
ertheless, execute yi^ur commission within that distance of the shore of
a nation at war with Great Britain, and even on the waters within the
jurisdiction of such nation, if permitted so to do. You are to pay the
strictest regard to the rights of neutral powers and the usages of civil-
ized nations, and in all your proceedings toward neutral vessels you are
to give them as little molestation or interruption as will consist with
the right of ascertaining their neutral character, and of detaining and
bringing them in for regular adjudication in the proper cases. You are
l)articularly to avoid even the appearance of using force or seduction^
with a view to deprive such vessels of their crew or of their passengers,
other than persons in the military service of the enemy. Towards en-
emy's vessels and their crews you are to proceed, in exercising the

480

CHAP. XX.] SUSTAINED BY POLICY OF U. S. [§ 385.

rights of war, with all the juBtice and humanity which characterize the
nation of which yoa are members. The master and one or more of the
principal persons belonging to the captured vessel are to be sent, as
soon after the capture as may be, to the judge, or judges, of the proper
coart of the United States, to be examined upon oath touching the in-
terest or property of the captured vessel and her lading ; and at the
same time are to be delivered to the judge or judges all passes, charter-
parties, bills of lading, invoices, letters, and other documents and writ-
ings found on bo&rd; the said papers to be proved by affidavit of the
commander of the capturing vessel, or some other person present at the
capture, to be produced as they were received, without fraud, addition,
snbdnctiou, or embezzlement.'"

2 HaUeck's Int. Law (Baker's ed.)f 13 if. See, on iustructious to privateers
of the United States, the Mary and Susan, 1 Wheat., 46. See 2 Wheat.,
(App.) 80.

In Mr. Gallatin's speech of February 10, 1797, he advocates priva-
teering as "our only mode of warfare against European nations at sea.'»

Adams's Gallatin, 170.

^'Privateers will find their own men and money. Let nothing be
spared to encourage them. They are the dagger which strikes at the
heart of the enemy — their commerce." ^ •

Mr. Jefferson to Mr. Monroe, Jan. 1, 1815. 6 Jeff. Works, 409.

"With regard to the ideas suggested in your note of 22d of March
of a common agreement to be adopted by all Governments, or by several
in amity with each other, to consider as a pirate every privateer with
a commission delivered with blanks left for the names, unlimited in
point of time, or whose captain, and at least half of its crew, should
not be natives of the country under whose flag the privateer shall be
navigated, I would submit to your enlightened consideration that, in-
dependently of the question whether all or any of the nations of Europe
^m prepared to agree upon such a mutual stipulation, there might be
great difficulty to the admission of the principle in the code of the
United States. By the laws of nations the punishment denounced
against the crime of piracy is capital ; a severity which, by the insti-
tations of the United States, is confined to very few crimes of the most
a^odoos character. It would scarcely be compatible with the senti-
Dtents prevailing in this nation to extend that heaviest of all penalties
to offenses the malignity of which might be so different in degree ac-
<»Tding to the various circumstances under which they might be per-
petrated."

Mr. Adams, Sec. of State, to Mr. de NenvUle, Apr. 15, 1819. MSS. Notes, For.
Leg.

^^The issuing of letters of marque and reprisal is an act of high
sovereign authority. Under the Constitution of the United States
this power is intrusted alone to Congress. A declaration of war, with-
oat a special provision for the purpose, contained in the act, does not
confer upon the President this authority. Whenever civilized Qfovexu-

S. Mis. 162— VOL. m 31 481

§ 385.] PRIVATEEBINO. [CHAP. XX.

ments resort to this expedient to annoy their enemies, they adopt the
regulations and restrictions necessary to prevent or panish abases
almost necessarily arising from the grant to private individuals of the
authority to make war upon the ocean. Eesponsible securities are
required in such cases from the commanders of privateers, to prevent
them from abusing their high trust. By means such as these the rights
of the citizens 'and subjects of the power granting the commission, as
well as those of neutrals, are maintained, and the rights of war, ac-
cording to the practice of civilized nations, are secured even to the
enemy. These precautions are necessary to prevent such commissions
from falling into the hands of free-booters, slave-traders, and pirates
prepared to violate all laws, human and divine, in the pursuit of plunder.

<' What, then, must be thought of a Government, in the nineteenth
century, which, disregarding all its high duties, sends its agents abroad
with hundreds of blank commissions to privateers, to be sold to all the
wretches upon earth, base enough to make the purchase t The high
prerogatives of sovereign powers are thus transferred to the lowest
agent, who is authorized to fill up the blank in the commission, by in-
serting the name of the commander of the privateer. Well did the
President observe, in his last annual message to Congress, that, < as the
preliminaries required by the practice of civilized nations for commis-
sioning privateers, and regulating their conduct, appear not to have
been observed, and as these commissions are in blank, to be filled up
with the names of citizens and subjects of all nations who may be will-
ing to purchase them, the whole proceeding can only be construed as
an invitation to all the freebooters upon earth, who are willing to pay
for the privilege, to cruise against American commerce.' • • •

'^ This Government cannot recognize the lawful existence of Mexican
privateers in the Mediterranean. Those assuming this name have not
received their commissions in Mexico, but in friendly countries, where
to grant or to accept them was a violation of neutral rights ; they do
not belong to Mexican citizens, and their crews are composed chiefly of
Spanish subjects, who, by the act of accepting such commissions, become
pirates. These corsairs take to the seas, under color of commi8sioD»
issued in blank and filled up in a Spanish port by some inferior ageot,
from whom they have purchased the privilege to plunder AmericaD
vessels. Among their crews will be found pirates, slave traders, and
freebooters of almost every country, except Mexico herself, ready to prey
upon the commerce of all nations, when this can be done with impanity.
The character and the interests of all Ohristendom require that they
should not receive the countenance of any civilized nation.

"Our vessels of war in the Mediterranean will be ordered to seize
and send home for trial as pirates, under the treaty of 1795 and the
act of March 3, 1847, all Spanish subjects who have accepted and acted
under such Mexican commissions.'^ ^

Mr. Bachanan, Seo. of State, to Mr. Saanders, June 13, 1847. MSS. Inst., Spftui*
482

•f

CHAP. XX.] SUSTAINED BY POLICY OF U. S. [§ 385.

^' Thursday y March 16, 1854.

<^ Galled at the foreign office by the invitation of Lord Clarendon. He
presented me a printed treaty in blank, which he proposed should be
execated by Great Britain, France, and the United States. The chief
object of it was that all captains of privateers and their crews should
be considered and pnnished as pirates, who, being subjects or citizens
of one of the three nations who were neutral, should cruise hgainst either
of the others when belligerent. The object undoubtedly was to prevent
Americans from taking service in Bu3sian privateers during the present
^ar. We had much conversation on the subject, which I do not mean
to repeat, this memorandum being merely intended to refresh my own
memory. His lordship had before him a list of the different treatfes
between the United States and other nations on this subject.

*< 1 was somewhat taken by surprise, though I stated my objections
pretty clearly to such a treaty. Not having done justice to the subject,
in my own opinion, I requested and obtained an interview for the next
day, when I stated them more fully and clearly. The heads were as
follows :

" 1. It would be a violation of our neutrality in the war to agree with
France and England that American citizens who served on board Eus-
sian privateers should be punished as pirates. To prevent this, Ens-
sia should become a party to the treaty^ which, under existing circum-
stances, was impossible.

^* 2. Our treaties only embraced a person of either nation who should
take commissions as privateers, and did not extend to the crew. Sailors
were a thoughtless race, and it would be cruel and unjust to punish
them as pirates for taking such service, when they often might do it
from want and necessity.

'^ 3. The British law claims all who are born as British subjects to

he British subjects forever. We naturalize them and protect them as

American citizens. If the treaty were concluded, and a British cruiser

BboQld capture a Bussian privateer with a naturalized Irishman on

board, what would be the consequence f The British law could not

punish him as an American citizen under the treaty, because it would

tegaxd him as a British subject. It might hang him for high treason ;

aodsachan event would produce a collision between the two countries.

Tbeold and the dangerous question would then be presented in one of

its worst aspects.

"4. Whilst such a treaty might be justly executed by such nations
JW Great Britain and the United States, would it be just, wise, or hxx-
^ane to agree that their sailors who took service on board a privateer
f^boald be summarily tried and executed as pirates by several powers
vluch could be named ?

**5. Cui bono should Great Britain make such a treaty with France
during the existing war. If no neutral power should enter into it with
them, it could have no effect during its continuance.

"6. The time might possibly come when Great Britain, in a war with
the despotisms of Europe, might find it to be exceedingly to her inter-
est to employ American sailors on board her privateers, and such a
treaty would render this impossible. Why should she unnecessarily
bifid her hands f

"7. The objections of the United States to enter into entangling alli-
ances with European nations.

"8. By the law of nations, as expounded both in British and American
comts, a commission to a privateer, regularly issued by a belUg^i^ttX

483

§ 385.] PRIVATEERING. [CHAP. XX.

nation^ protects both the captain and the crew from panishinent as
pirates. Would the different commercial nations of the earth be willing
to change this law as you propose, especially in regard to the crew f
Would it be proper to do so in regard to the latter 1 %

"After I had stated these objections at some length on Friday, the
17th of March, Lord Clarendon observed that when some of them were
stated the day before, they had struck him with so much force after re-
flection, that he had come to the office from the House of Lords at night
and written them down and sent them^o Sir James Graham. In his
own opinion the treaty ought not to be concluded, and if the Cabinet
came to this conclusion the aflair should drop, and I agreed I would not
write to the Department on the subject. If otherwise, and tjbe treaty
should be presented to the Government of the United States, then I was
to report our conversation."

Memoranda of Mr. Buchanao, minister at London. 2 Curtis' Bachanan, 128.

"In answer (to Lord Clarendon) I admitted that the practice of priva-
teering was subject to great abuses ; but it did not seem to me possi-
ble, under existing circumstances, for the United States to agree to '
its suppression, unless the naval powers would go one step further, and
consent that war against private property should be abolished altogether
upon the ocean, as it had already been upon the land. There was noth-
ing really different in principle or morality between the act of a regular
cruiser and that of a privateer in robbing a merchant vessel upon the
ocean, and confiscating the property of private individuals on board for
the benefit of the captor. But how would the suppression of privateer-
ing, without going further, operate upon the United States! Suppose,
for example, we should again unfortunately be engaged in a war with
Great Britain, which I earnestly hope might never be the case, to what a
situation must we be reduced if we should consent to abolish privateer-
ing f The navy of Great Britain was vastly superior to that of the
United Statfes in the number of vessels-of-war. • • • The only
means which we would possess to counterbalance in some degree their
far greater numerical strength would be to convert our merchant
vessels cast out of employment by the war into privateers, and en-
deavor, by their assistance, to inflict as much injury on British as they
would be able to inflict on American commerce.^'

Mr. Buchanan, minister at London, to Mr. Marcy, Mar. 24, 1854. MSS. Dispatches,
Gr. Brit, bonse Ex. Doc. 103, 33d Cong., Ist

" The King of Prussia entirely approves of the project of a treaty ta
the same effect (as to protection of private property at sea) submitted
to him, but proposes an additional article providing for the renunciation
of privateering. Such an article, for most obvious reasons, is mnch
desired by nations having naval establishments, large in proportion to
their, foreign commerce. If it were adopted as an international rale,
the commerce of a nation having comparatively a small naval force,
would be very much at the mercy of its enemy, in case of war with a
X)Ower of decided naval superiority. The bare statement of the condi-
tion in which the United States would be placed, after having surren-
dered the right to resort to privateers, in the event of war with a beUig-
erent of naval supremacy, will show that this Government could never
listen to such a proposition. The navy of the first maritime power ix^

484

CHAP. XX.] SUSTAINED BY POLICY OF U. S. [§ 385.

'Bnropeis at least ten times as large as that of the United Statesi The
foreign commerce of the two countries is nearly eqaal, and about
equally exposed to hostile depredations. In war between that power
and the fJnited States, without resort on our part to our mercantile
marine, the means of our enemy to inflict injury upon our commerce
TTould be tenfold greater than ours to retaliate. We could not extri-
cate our country from this unequal condition, with such an enemy, un-
less we at once departed from^our present peaceful policy, and became
a great naval power. Nor would this country be better situa ced, in war
Tnth one of tbe secondary naval powers. Though the naval disparity
would be less, the greater extent, and more exposed conilition of our
wide spread commerce, would give any of them a like adva utage over us.
" The proposition to enter into engagements to forego resort to pri-
vateers, in case this country should be forced into war with a great naval
power, is not entitled to more favorable consideration than would be a
proposition to agree not to accept the services of volunteers for opera-
tions on land. When the honor or the rights of our country require it
to assume a hostile attitude, it confidently relies upon the patriotism of
its citizens, not ordinarily devoted to the military profession, to aug-
ment the Army and the Navy, so as to make them fully adequate to the
emergency which calls them into action. The proposal to surrender the
right to employ privateers is professedly founded upon the principle
that private property of unoffending non-combatants, though enemies,
should be exempt from the ravages of war ; but tbe proposed surrender
goes but little way in carrying out that principle, which equally requires
that such private property should not be seized or molested by national
8bips-of-war. Should the leading powers of Europe concur in propos-
ing, as a rule of international law, to exempt private property upon the
ocean from seizure by public armed cruisers, as well as by privateers,
the United States will readily meet them upon tbat broad ground."

President Pierce, Second Annnal Message, 1854.

**Both Great Britain and France, as well as Eussia, feel much con-
cerned OS to the course which our citizens will take in regard to priva-
teering. The two former powers would at this time most readily enter
into conventions stipulating that the subjects or citizens of the party
^ing a neutral, who shall accept commissions or letters of marque, and
engage in the privateer service, the other party being a belligerent,
iDay be treated as pirates. A stipulation to this effect is contained in
several of our treaties, but I do not think the President would permit
it to be inserted in any new one. His objection to it does not arise from
!^ desire to have our citizens embark in foreign belligerent service, but
on the contrary, he would much regret to see them take such a course.
Our laws go as far as those of any other nation, I think further, in lay-
ing restraints upon them in regard to going into foreign privateer serv-

•

ice. This Government is not prepared to listen to any proposition for

§ 385.] PRIVATEERING. [CHAP. X

a total suppression of privateering. It would not enter into any co
vention whereby it would preclude itself from resorting to the merchai
marine of the country in case it should become a belligerent party."

Mr. Marcy, Sec. of State, to Mr. Bnchamiii, Apr. 13, 1854. MSS. InA., Gr. Br

" The views of the President on the proposal by Prussia to add
provision against granting letters of marque to privateers, are brief
presented in his annual message to Congress of the 4th instant, a co]
of which accompanies this note. Limited as that proposal is, the Pre:
dent is unwilling to accede to it.

"If a stipulation in regard to the individual property of the citizei
or subjects of powers engaged in hostilities as comprehensive as th
suggested in the message had any chance of being generally accei
able, he would agree to add it to those contained in the draft. As
provision in any form to renounce the right of granting letters
marque or of seizing private property on the high seas by public armi
cruisers would undoubtedly embarrass and probably defeat the attem]
to secure the general recognition of the essential neutral rights pr
posed by the convention, the President sincerely hoped that His M;
esty the King of Prussia would agree to it in the form in which it hi
been presented to him by the United States."

Mr. Marcy, Sec. of State, to Baron Gerolt, Dec. 9, 1854. MSS. Notes, Pruss:

'< Some of the powers which are parties to that ^ declaration,' ai
' many which are invited to concur in it, are under solemn treaty stipal
tions with the United States, and it is presumed they are with othc
nations, in which the right to resort to privateers is not only recognized
but the manner of employing them is regulated with great particularly
How the proposed new engagement can be reconciled with the faithfa
observance of existing treaty stipulations on the subject cannot be easily
perceived.

<< I shall not, in this dispatch, remark upon the incompatibility of tbes^
obligations, nor shall I now exhibit the views which this Govemmeal
entertains of the fatal doctrine now attempted to be introduced into th<
maritime code, to most commercial nations, and especially to tho6<
which are not burdened, or may not choose to burden themselves, witi
large naval establishments.

" The right of a commercial state, when unhappily involved in war
to employ its mercantile marine for defense and aggression, has here
tofore proved to be an essential aid in checking the domination of abd
ligereut possessed of a powerful navy. By the surrender of that uncon
tested right one legitimate mode of defense is parted with for a like sot
render only in form by a strong naval power, but in effect the mutua
surrender places the weaker nation more completely at the mercy o
the stronger."

^ir. Marcy, Sec. of State, to Mr. Gadsden, Jaly 14, 1856. MSS. iDst, Mex. ; }i^
Marcy, Sec. of State, to Mr. Seibels, Jaly 14, 1856. MSS. Inst., Belfioif

486

CHAP. XX.] SUSTAINED BY POLICY OF U. S. [§ 385.

"Thp policy of the law which allows a resort to privateers has been
qnestioned for reasons which do not command the assent of this Ooy-
ernment. Without enterlDg into a full discussion on this point, the un-
dersigned will confront the ordinary and chief objection to that policy
by an authority which will be regarded with profound respect, particu-
larly in France. In a commentary on the French ordonnance of 1668,
Valin says :

*** However lawful and time-honored this mode of warfare may be, it
is nevertheless disapproved of by some pretended philosophers. Ac-
cordiDg to their notions such is not the way in which the state and the
Bovereifjn are to be served ; whilst the profits which individuals may
derive from the pursuit are illicit, or at least disgraceful. But this is
the language of bad citizens, who, under the stately mask of a spurious
wisdom and of a craftily sensitive conscience, seek to mislead the judg-
ment by a concealment of the secret motive which gives birth to their
indifference for the welfare and advantage of the state. Such are as
worthy of blame as are those entitled to praise who generously expose
their property and their lives to the dangers of privateering.'

"In a work of much repute, published in France almost simultane-
onsly with the proceedings of the congress at Paris, it is declared that
^the issuing of letters of marque, therefore, is a constantly customary
belligerent act. Privateers are bona fide y^BT vessels, manned by vol-
unteers, to whom, by way of reward, the sovereign resigns such prizes
^they make, in the same manner as he sometimes assigns to the land
forces a i)ortion of the war contributions levied on the conquered
enemy.' (Pistoye et Duverdy, des Prises Maritimes.) • • •

"Ko nation which has a due sense of self-respect will allow any other
belligerent or neutral to determine the character of the force which it
^ay deem proper to use in prosecuting hostilities ; nor will it act wisely
if it voluntarily surrenders the right to resort to any means sanctioned
by international law which under any circumstances may be advantage-
ously used for defense or aggression.

''The United States consider powerful navies and large standing
^ie8,as permanent establishments, to be detrimental to national pros-
perity and dangerous to civil liberty. The expense of keeping them up
is baidensome to the people ; they are in some degree a menace to peace
among nations. A large force ever ready to be devoted to the purposes
of war is a temptation to rush into it. The policy of the United States
bas ever been, and never more than now, adverse to such establish-
Dients, and they can never be brought to acquiesce in any change in
^International law which may render it necessary for them to maintain
a powerful navy or large standing army in time of peace. If forced to
yindicate their rights by arms they are content, in the present aspect of
international relations, to rely, in military operations on land, mainly
ppon volunteer troops, and for the protection of their commerce, in no
i^eonsiderable degree upon their mercantile marine. If this country

4»l

§ 385.] PRIVATEERING. [CHAP. XX.

were deprived of these resources it would be obliged to change its policj
and assume a military attitude before the world. In resisting an at
tempt to change the existing maritime law that may produce such a
result, it looks beyond Its own interest, and embraces in its view th<
interest of all nations as are not likely to be dominant naval powers
Their situation in this respect is similar to that of the United States
and to them the protection of commerce and the maintenance of inter
national relations of peace appeal as strongly as to this country to with
stand the proposed change in the settled law of nations* To such nationf
the surrender of the right to resort to privateers would be attended witt
consequences most adverse to their commercial prosperity without an^
compensating advantages. • • • ^

'^ It certainly ought not to excite the least surprise that strong nava
powers should be willing to forego the practice, comparatively useless
to them, of employing privateers upon condition that weaker powen
agree to part with their most effective means of defending their man
time rights. It is in the opinion of this Government to be seriously ap-
prehended that if the use of privateers be abandoned the dominion over
the seas will be surrendered to those powers which adopt the policy
and have the means of keeping up largo navies. The one which has a
decided naval superiority would be potentially the mistress of the ocean,
and by the abolition of privateering that domination would be more
firmly secured. Such a power engaged in a war with a nation inferior
in naval strength would have nothing to do for the security and pro-
tection of its commerce but to look after the ships of the regular navy
of its enemy. These might be held in check by one-half or less of its
naval force, and the other might sweep the commerce of its enemy from
the ocean. Kor would the injurious effect of a vast naval superiority
to weaker states be much diminished if that superiority was shared
among three or four great powers. It is unquestionably the interest oi
such weaker states to discountenance and resist a measure which fos-
ters the growth of regular naval establishments.^

Mr. Marcy, Sec. of State, to Mr. Sartiges, July 28, 1856. MSS. Notes, France.

The President '^ finds himself unable to agree to the first principle in
the 'declaration ^ contained in Protocol No. 23, which proposes to abolish
privateering, or to the proposition in the Protocol No. 24, which de-
clared the indivisibility of the four principles of the declaration, and
surrenders the liberty to negotiate in regard to neutral rights except
on inadmissible conditions. It cannot have been the object of the Gov-
ernments represented iu the congress at Paris to obstruct the adoption
of principles which all approve and are willing to observe, unless they
are encumbered by an unrelated principle to which some Governments
cannot accede without a more extended application of it than that
which is proposed by the Paris congress."

Mr. Marcy, Sec. of State, to Mr. MajiOD, Jaly 29, 1856. MSS. Inst., France.
488

UHAP. XX.] SUSTAINED BY POLICY OF U. S. [§ 385-

"Thoagli the Bresident does not seriously apprehend that the rights^
of the United States in regard to the employment of privateers will he
affected directly or indirectly by the new state of things which may
arise oat of the proceedings of the congress at Paris, yet it wonld he
gratifying to him to be assured by the Government of Sardinia that no-
new complications in our relations with it are likely to spring from those
proceedings. He trusts that, so long as Sardinia is, and he anxiously
desires that she should ever be, a friendly x)ower, her ports will be, as
they heretofore have been, a refuge from the dangers of the sea and
from attack as well for our own privateers as for our merchant vessels
and national ships-of*war in the event of hostilities between any other
Eaiopeaji power and this country.''

Mr.Marcy, Sec. of State, to Mr. Daniel, July 29, 1856. MSS. Inst., Italy. ^

"You will see by the inclosed slip just cut from the Globe newspaper
that Mr. Cobden anticipates for your conditional surrender of priva-
teering an almost unanimous decision in the House of Commons in its
favor. This is a sincere, and, I believe, a sound opinion, viewing the
qaestion as an English one. They will gain everything, first, for the
security of their commerce, and, second, in the concentrative efficacy
of their prodigious naval armament. War will not endanger their
merchant ships or their manufactures, and thus, relieved from all care
abont these vital interests, they may send their fleets to bully and thun-
der where they please. Opposite results may be drawn from an Amer-
ican vieio. Losing the right of privateering, in other words, of assail-
ing the vital interests of our adversary, our means of aggression are
nil. Onr Navy must be docked, and we must be content with whatever
terms the adversary in this national duel may prescribe for a peace, if
indeed a peace would ever be desirable or attainable. You see, I have
my iDi8givings on your great measure of change in the rights of nations
at war. If our Navy approached anywhere near to the powei* of the one
displayed off Portsmouth last spring, I should be quite willing to let it
talse its chance in defending our coast, but as it now is, and, as I am
afraid, by an unwise economy, it' may long be kept, it is impossible to
say at bow many points of landing along our coast a war wonld rapidly
l>ecome one of invasion."

Mr. Dallas to Mr. Marcy, Sec. of State, Dec. 12, 185G. 1 Letters from London, 1 19,

Mr. Seward's circular of April 24, 1861, proposing to abolish priva-
teering, shows on its face that the proposition was a mere temporary
expedient induced by the exigencies of the civil war. He recites the
Impositions of the Paris congress: (1) that privateering be abolished f
(2) that neat ral flags shonld cover enemy's goods ; (3) that neutral goods
should not be liable to capture under enemy's flag ; and (4) that block-
ades must be effective. He then calls attention to the fact that when the
President (Mr. Pierce), on July 14, 1856, declined to accede to these
propositions, Mr Marcy, then Secretary of State, said that the United
States were willing to accept the abolition of privateering ** with an
ftttendinent which shonld exempt the private property of individuals,
though belonging to belligerent states, from seizure, or confiscation bj'
national vessels in maritime war." This, however, was not acceded to
^y England, and the projiosition, iu Mr. Buchanan's administration, wa^

489

§ 385.] PEIVATEERING. [CttAP. X:

withdrawn. Since then, however, things have changed. " Euro]
seems once more on the verge of qnite general wars. On the other ham
a portion of the American people have raised the standard of insurre
tion, and proclaimed a provisional Government, and, through their o
gans, have taken the bad resolution to invite privateers to prey up(
the peaceful commerce of the United States. Prudence and humanit
combine in persuading the President, under the circumstances, that
is wise to secure the lesser good offered by the Paris congress, withoi
waiting indefinitely in hope to obtain the greater one offered to the m&]
time nations by the President of the United States." This propositi^
was not entertained by England and France, and that it was a me
transient impulse of Mr. Seward, and was speedily withdrawn, if n
forgotten, is illustrated by his letter of July 12, 1862, to Mr. Adams,
which he says: ^' This transaction will furnish you a suitably oceasii
f^r informing Earl Bussel that since the Oreto and other gunboats a
being received by the insurgents from Europe to renew demonstr
tions on national commere, Congress is about to authorize the issue
letters of marque and reprisal, and that if we find it necessary to su
press that piracy, we shall bring privateers into service for that purpoe
and, of course, for that purpose only." Congress did not authorize tl
issuing of letters of marque and reprisal, it not being '^ necessary:" b
that such a step should be held by Mr. Seward to be the duty anu rig-;
of the Government shows that his circular of April 24, 1861, must ha^
been regarded by him, if regarded at all, as recalled. It certainly wi
never acted on by any European power. •

The 2d section of the act of August 5, 1861, to protect commerce am
punish piracy, authorized the President to direct the commanders o
^' armed vessels sailing under the authority of any letters of marque o:
reprisal granted by the Congress of the United States, or the command
ers of any other suitable vessels," to seize and capture vessels intendec
for piratical aggressions ; no act, however, authorizing the issue of let
ters of marque during the civil war was passed (see Stat. L., 1861, 315)
though, as will be seen, Mr. Seward reserved the right so to do if i<
were necessary. But the Secretary of the Navy, in a note of Octobei
1, 1861, to the Secretary of State said :

<<In relation to the communication of E. B. Forbes, esq., a copyol
which was sent by you to this Department on the 16th ultimo, inqnir
ing whether letters of marque cannot be furnished for the propellei
Pembroke, which is about to be dispatched to China, I have the honoi
to state that it appears to me there are objections to, and no authority
for, granting letters of marque in the present contest. I am not aware
that Congress, which has the exclusive power of granting letters ol
marque and reprisal, has authorized such letters to be issued agaioBi
the insurgents, and were there such authorization I am not prepared U
advise its exercise, because it would, in my view, be a recognition &
the assumption of the insurgents that they are a distinct and independ
ent nationality.

" Under the act of August 5, 1861, * supplementary to an act entitle^
an act to ])rotect the commerce of the United States, and to punish tl><
orime of piracy,' the President is authorized to instruct the commander^
of ' armed vessels sailing under the authority of any letters of marqi^^
and reprisal graiiited by the Congress of the United States, or the codp
manders of any other suitable vessels, to subdue, seize, take, and, if c'
the high seas, to send into any port of the United States any vessel o
boat built, x)urchased, fitted out, or held,' etc.

490

CHAP. XX.] SUSTAINED BY POLICY OF U. S. [§ 385.

'^This allasiou to letters of marque does not aathorize siicli letters to
be issued, nor do I iiud any other act containiDg sach authorization.
Bat the same act, in the 2d section, as above quoted, p^ives the Presi-
dent power to aathorize the ' commanders of any suitable vessels to
subdue, seize,^ etc. Under this clause, letters permissive, under proper
restrictions and guards against abuse, might be granted to the propeller
Pembroke, so as to meet the views expressed by Mr. Forbes. This
would seem to be lawful and perhaps not liable to the objections of
granting lett^^rsof marque against our own citizens, and that, too, with-
out law or authority from the only constituted power that can grant it."

Mr. Welles, Sec. of the Navy, to Mr. Seward, Sec. of State, Oct. 1, 1861. MSS.
Pept. of State.

Mr. Seward, on March 9, 1863, wrote to Mr. Adams (MSS. Inst., Gr.
Brit.) that *^ Congress has conferred upon the President ample power
for the execution of the latter measure (issue of letters of marque and
reprisal) and the necessary arrangements for it are now engaging the
attention of the proper Departments."
He salisequently instructed Mr. Dayton as follows :
^^Tbe unrestrained issue of piratical vessels from Europe to destroy
our commerce, break oar blockade of insurrectionary ports, and invade
oar loyal coast, would practically be a European war against the Uni-
ted States, none the less real or dangerous for wanting the sanction of
a formal declaration. Oongress has committed to the President, as a
weapon of national defense, the authority to issue letters of marque.
We know that it is a weapon that cannot be handled without great
danger of anno3'ance to neutral and friendly commercial powers. But
^^en that hazard must be incurred rather than quietly submit to the
apprehended greater evil.'*

Mr. Seward, Sco. of State, to Mr. Dayton, Apr. 24, 1863. MSS. Inst., France.

''Thoughtful and hopeful minds generally favor the proposition to
exempt private persons and property on the high seas from the inflic-
tionaof war. So far as I have learned, this opinion has, however, been
by no means universally accepted. There is a large class of persons
vbo habitually regard foreign war as always a probable contingency,
besides many who are continuaUy accepting a conflict with some partic-
ular state or states. These persons regard privateering not only as
the strongest arm of naval defense, but as one which the United States
<»uld use with greater advantage than any foreign enemy. Those por-
ous are so jealous on the subject of privateering that they are always "*
'uiwilling to consent to waive the right in any one treaty for fear that
tte treaty may become a precedent for the entire abandonment of that
form of public war. Certainly this latter class very strongly prevailed
throughout the entire period of our civil war. I have not recently
^ade any careful inquiry to ascertain how far that popular sentiment
has been modified by the return of i)eace."

Mr. Seward, Sec. of State, to Mr. Bancroft, Feb. 19, 1868. MSS. Inst. , Prussia ;
Dip. Corr., 1868.

491

§ 385.] PRIVATEERING. [CHAP. XX-

'^A bill to authorize the President, during the continnance of the
civil war, to grant letters of marque and reprisal, was introduced at the
session of l^I-'62, but failed in consequence of the position taken iv^
opposition, that letters of marque could only be granted against ai^
independent state, and that their issue might be regarded as a recog-
nition of the Confederate States. It was also objected that the billif
passed would be regarded as an admission of weakness on^ the part oP'
the Federal l^avy, and as conflicting with the position that privateer--
ing, as conducted by the Confederate States, was piracy."

Congrewional Globe, 1661-'62, 3J25, 3335. See Lawrence's Wheaton (ed. 1863)^

643.
As to encouragement of privateers by Congress and their efficiency in the Rev.

olutionary War, see 2 John Adams' Works, 504; 3 ibid,, 37, 207; 7 ikid.,

21,23,159,176,189,273,299,312,356; 10 iMd., 27,31.
As to their encouragement by France, see 7 John Adams' Works, 21, 23.
As to policy and lawfulness of privateering, see 9 John Adams' Works, 607;

and see 13 Hunt's Merchants' Mag., 450, 456; 8 Edin. Bev., 13 ; 2 K. Am.

Rev. (N. S.), 166.
As to French privateers, see 8 John Adams' Works, 551 ; 9 ibid,, 16, 155.
Mr. Jefferson'^ message of Jan. 21, 1805, on American privateers, with the accom-
panying papers, is given in 2 Am. St. Pap. (For. Bel.), 607.
The papers and correspondence connected with President Monroe's instructions

as to private armed vessels are given in President Pierce's message of Jone

12, 1854 ; House Ex. Doc. Ill, 33d Cong., Ist sess.
As to refusal of France to concur in a convention with the United States so

far as to abolish privateering during the civil war, see Mr. Seward, Sec.

of State, to Mr. Dayton, Sept. 10, 1861. MSS. Inst., France.
Further correspondence relating to privateering will be found in Brit, and For.

St. Pap. for 1860-'61 ; vol. 51 ; ibid., 1864-'65, vol. 55.
Mr. Sumner's views in opposition to letters of marque and reprisal are in 7 Sum*

ner's Works, 278,313.
The position of the United States in reference to the proposition of the Paris

conference for the abolition of privateering is further discussed •«pr«,

^ 342. See also 3 Phill. Int. Law C3d ed.). 534.

The United States Government sarrendered at the close of the late
civil war the position that Confederate privateers were pirates.

Mr. Bolles, Solicitor of the Navy, in Atlantic Monthly for Jnly and August,
1871. See these articles noticed in Sir A. Cockbum's Review of the Geneva^
Arbitration, and Bullock's Secret Service of Confederate States, ii, 116;
supra J $ 3H1.

The status of Confederate privateers in foreign ports is considered in a report
with accompanying papers of Mr. Seward, Sec. of State, Apr. 26, 1862;
House Ex. Doc. 104, 37th Cong., 2d sess.

As to the Chesapeake pirates, see supra, $ 27.

" Were the claims of the great naval powers to seize private property
on the high sens abandoned, this monopoly woald be less prejudicial.
Bat, directed as it is to the appropriation of such spoils, it is virtually,,
if conceded, a monopoly to powers of a particular class to seize what-
ever is afloat on the waters which their prize courts may condemn.
The suppression of privateering, therefore, is not called for in the interests
of peace. Such suppression would only add another stimulus to the in-
crease of naval armaments already bearing so oppressively on the Old
World ; and the effect would be to force on this continent a competitioi^

492

<JHAP. XX.] SUSTAINED BY POLICY OF U. S. [§ 385.

mtbe rainous race for naval supremacy ia which at present the maritime
powers of Europe are engaged. And it should also be observed that a
privateer navy is the militia of the seas, consistent as is the militia of
the land with industrial pursuits, adding to the wealth and comfort of
the community when war does not exist. When the calamity of war
does come, then there will be enough shipping and sailors disengaged
from their prior employments to man such militia fleets. It is no
(lonbt a choice of evils. But as long as the seizure of belligerent pri-
vate property on the high seas is countenanced by the European ma-
rine powers, so long it is better for the United States to hold the right
to turn their merchant service into naval service in case of war, than
for them to overburden the country by an enormous navy in times of
peace."

Whart. Com. Am. Law, $ 201.

To the objection that privateers may appropriate their booty, the an-
swer is (1) that ships-of-war approiiriate large parts of such booty as
prize-money, and (2) that privateers may he placed on the same footing
as to prize-money with ships-of-war. This diflBculty being removed,
and privateers being subjected to naval control, it is hard to see what
greater objections exist to the commissioning of the commanders of pri-
vateers than to the issuing of commissions to particular officers to raise
troops for local defense. In this way, in fact, as is remarked by Perels,
an author of eminence already cited, the necessity of large navies is
avoided, as a sovereign with a mercantile marine can readily, by issuing
privateering commissions, so harass his enemy's commerce as to equalize
the conflict with such enemy, though possessing a far superior naval
force. The retention of resources which wou!.^ punish an assailant is
one of the best ways of preventing an assault. The United States Gov-
ernment having elected, wisely' or unwiselj', not to maintain a large
navy, can only keep its position on the high seas by holding in reserve
the right to commission privateers when necessary.

Ibid.

Mr. Jefferson, in a paper dated July 4, 1812, vindicating privateer-
"^gjsays: "What is wart It is simply a contest between nations,
of trying which can do the other the most harm. Who carries on the
varf Armies are formed and navies manned by individuals. How is
a battle gained f By the death of individuals. What produces peace!
The distress of individuals. What difference to the sufferer is it that
^^ property is taken by a national or private armed vessel f Did our
merchants, who have lost nine hundred and seventeen vessels by British
^ptares feel any gratification that the most of them were taken by
His Majesty's men-of-war! Were the spoils less rigidly exacted by a
wventy-four gun ship than by a privateer of four guns ; and were not
*D equally condemned f War, whether on land or sea, is constituted
of acts of violence on the persons and property of individuals; and ex-
<*88 of violence is the grand cause that brings about a peace. One man
fights for wages paid him by the Government, or a patriotic zeal for the
defense of his country ; another, duly authorized, and giving the proper
pledges for his good conduct, undertakes to pay himself at the expense
^f the foe, and serves his country as effectually as the former, andGov-
^ment drawing all its supplies from the people, is, in reality, as much
^ected by the losses of the one as the other, the efficacy of its ipeas-
^^^8 depending upon the energies and resources of the whole. In the

493

§ 385.] PR17ATEERING. [CHAP. XX.

United States, every possible encoaragement should be given to priva-
teering ill time of war with a commercial nation. We have tens of
thousand of seamen that without it would be destitute of the means of
support, and useless to their country. Our national ships are too few
in number to give employment to a twentieth part of them, or to retal-
iate the acts of the enemy. Bat by licensing private armed vessels,
the whole naval force of the nation is truly brought to bear on the foe,
and while the contest lasts, that it may have the speedier termination,
let every individual contribute his mite, in the best way he can, to dis-
tress and harass the enemy, and comi>el him to peace."

Coggeshall's Hist. Am. Privateera, introdactioD, p. 43.

<< We have been worsted in most of our naval encounters, and baffled,
in most of our enterprises by land. With a naval force on their coast:
exceeding that of the enemy in the proportion of two to one, we have
lost two out of three of all the sea-fights in which we have been engaged,
and at least three times as many men as our opponents : while Uieir
privateers swarm unchecked round all our settlements, and even on the
coasts of Europe, and have already made prize of more than seventeen
hundred of our merchant vessels."

24 Edinb. Rev., 250, Nov., 1814.

''In 1814, during the war between the United States and Great
Britain, the legislature of Kew York passed an act to constitute every
association of five or more persons, embarking in the trade of privateer-
ing, a body politic and corporate, with corporate powers, on their com-
plying with certain formalities."

2 HaUeck's Int. Law (Baker's ed.), 13.

At the close of the Crimean war an agreement was made, as part of
the Treaty of Paris, by the parties to the war who joined in that treaty,
pronouncing privateering to be piracy. The several questions proposed
by this treaty are considered together supra, § 342. Construed as was
the prohibition of the Treaty of Paris by both Germany and Great
Britain, during the Franco-German war of 1870, it is not inconsistent
with the use of privateering under the limitations above given. " She"
(Germany) " invited ship-owners to lend their ships for the war for a
remuneration. The crews were to be hired by the owners, but were
'to enter the federal navy for the continuance of the war, wear its
uniform, acknowledge its competency, and take oath to the articles of
war.' In case these ships destroyed or captured ships of the enemy,
certain premiums were to be paid to the owners for distribution among
the crews. The French Government complained to Lord Granville
about this decree, alleging that it was, under a disguised form, the re-
establishment of privateering; but Lord Granville, after consulting the
then law officers, Sir Travers Twiss, Sir R. Collier, and Sir John Col-
eridge, replied : < They advised me that there are, in their opinion, sub-
stantial differences between the proposed naval volunteer force sanc-
tioned by the Prussian Government, and the system of privateering
which, under the designation of '^ la course," the declaration of Paris was
intended to suppress, and that Her Majesty's Government cannot object
to the decree of the Prussian Government as infringing the declaration
of Paris.'" (Mr. Lawrence in North Amer. Rev. for July, 1878, 32;
citing 22 Solicitors' Journal, 523.) To the same effect is the opinion of
Bluntschli. "o^othing," declares that eminent publicist, "prevents a
state from forming a body of volunteers to be employed as a part of the

494

CHAP. XX.] SUSTAINED BY POLICY OF U. 8. [§ 385

auxiliary force of its army; so a maritime nation may, with entire pro-
priety, reinforce its fleet by adding vessels previously employed in com-
merce. An appeal may even be made to all the forces of the nation —
to a sort of naval Landstnrm — to combat the enemy." (9 Eevue de
droit int., 552.)

See, also, Twise, Duties in Time of War, 4'23, and more fall j Sir T. Twiss' state-
ment, supra, $ 384.

It is stated that the late "Confederate Government," owing "to the
disabilities to which their privateers were exposed in foreign ports," dis-
continned privateering^ and its croisers "claimed the right of pnblic
ships-of'War, and were commanded by officers commissioned by the Con-
federate States."'

North Amer. Kev., ut supraj 31.

Citizens of the United States are forbidden by statute to take part in
the equipment or manning of privateers to act against nations at peace
with the United States. (Act of June 14, 1797, and April 24, 1816.)
Treaties making privateering under such circumstances piracy have
been negotiated with England, France, Prussia, Holland, Spain, and
Sweden. (See letter of Mr, Marcfr, of April 28, 1854, and President's
declaration of neutrality of April 20, 1818.)

The policy of privateering is thus discussed by President Woolsey :
^^The right to employ this kind of extraordinary naval force is un-
questioned, nor is it at all against the usage of nations in times past to
giant commissions even to privateers owned by aliens. The advantages
of employing privateers are (1) that seamen thrown out of work by war
can thus gain a livelihood and be of use to their country. (2) A nation
which maintains no great navy is thus enabled to call into activity a
temporary force on brief notice and at small cost. Thus an inferior
state, with a large commercial marine, can approach on the sea nearer
to an equality with a larger rival having a powerful fleet at its disposal.
And 88 aggressions are likely to come from large powers, privateering
pay be a means, and perhaps the only effectual means, of obtaining
justice to which a small commercial state can resort."

Woolsey's Int. Law, $ 121.

"On the other hand, the system of privateering is attended with very
peat evils. ( 1) The motive is plunder. It is nearly impossible that the
feeling of honor and regard for professional reputation should act upon
theprivateersman's mind. And when his occupation on the sea is ended,
he returns with something of the spirit of a robber to infest society. (2)
The control over such crews is slight, while t^ey need great control,
^ey are made up of bold, lawless men, and are where no superior au-
thority can watch or direct them. The responsibility at the best can
poly be remote. The officers will not be apt to be men of the same train-
^^g with the commanders of public ships, and cannot govern their crews
^ easily as the masters of commercial vessels can govern theirs. (3)
The evils are heightened when privateers are employed in the execution
of belligerent rights against neutrals, where a high degree of character
and forbearance in the commanding officer is of especial importance.

"Hence many have felt it to be desirable that privateering should be
placed under the ban of international law, and the feeling is on the in-
^^reasejin our age of humanity, that the system ought to come to an end.'^

Ibid., $ 122.

495

§ 385.] PRIVATEERING. [CHAP. XX.

But the objections above stated may be removed by placiug priva-
teering under the restrictions above proi}Osed.

A belligerent cannot send out privateers from neutral ports.

Talbot V. Jansouy 3 Dall., 133.

The commission of a privateer must be considered as qualified and
limited by the laws under which it issues, and as subordinate to the in-
structions of the President, issued und^r the same act.

The Thomas Gibbous, 8 Cranch, 421.

An enemy's vessel, captured by a privateer, recaptured by another
enemy's vessel, and again recaptured by another privateer and brought
in for adjudication, was adjudged as prize to the last captors.

The Aetrea, 1 Wheat., 125.

The district courts of the United States, by virtue of their general
^admiralty and maritime jurisdiction, have jurisdiction of questions of
marine trespass by privateers independent of the special provisions of
the prize act of the 26th of June, 1812. (2 Stat. L., 269.)

The Amiable Naucy, 3 Wheat., 546.

The fact that a vessel cruising under the commission of a new Gov-
ernment not acknowledged by the United States is employed by such
Government may be established by parol evidence, without proving the
seal to such commission.

The Estrella, 4 Wheat., 298.

War having been recognized by the Government of the United States
to exist between Spain and her colonies, a capture of a Spanish vessel
and cargo by a privateer commissioned by the province of Carthagena,
while it had an organized Government and was at war with Spain, was
heldnotto be within the jurisdiction of the courts of the United States,
either by the general law of nations or by the treaty with Spain, which
stipulated for restitution in cases of piracy and captures in violation of
our neutrality, this being neither.

The Neastra Sefiora de la Caridad, 4 Wheat„ 497.

A commission to a privateer by a belligerent is a defense to an indict-
ment for piracy.

U. 6. V, Baker, 5Blatch., 13.

Where an American vessel commissioned with a letter of marque and
reprisal ha« been sold to foreigners, and the new owners are found
cruising with the same commander, with the same letter and under the
American flag, and there is good reason to suppose that the commission
of the letter of marque has been intentionally transferred, it is such an
4ibuse of the commission as will warrant a suit on the bond.

1 Op., 179, Rush, 1814.

496

CHAPTER XXI.

HEUTBAUTT.

I. RiOHTB OF NBUTRAL.

(1) May trade with either belligerent, and herein as to trade with soloniae

not open in peace, $ 388.

(2) May permit free discnasion as to foreign sovereigns, $ 389.

(3) May permit subjeots to famish funds or supplies to belligerents, $ 390

(4) Or munitions of war, i 391.

(5) Or to enlist in service of belligerent, $ 392.

(6) Or to sell or purchase ships, $ 393.

(7) Or may give asylum to belligerent ships or troops, $ 394.
3. Rbstrictions of neutral.

(1) Bound to restrain enlistments by belligerent, $ 395.

(2) Or issuing of armed expeditions, i 395a.

(3) Bound to restrain fitting out of and sailing of armed cruisers of bellig-

erent, $ 396.

(4) Or passage of belligerent's troops over soil, $ 397.

(5^ Bound not to permit territory to be made the base of belligerent opera-
tions, $ Sbd.

(6) Nor to permit belligerent naval operations in territorial waters, $ 399.

(7) Nor to permit sale of prize in ports, $ 400.

(8) Bound to redress damages done to belligerent by its connivance or neg-

ligence, $ 401. *

UL Dkorbe of vioilancs to be sxsrcised.

(1) Not perfect vigilance, but such as is reasonable under the olroomstanoes,

$402.

(2) Rules of 1871, and Geneva tribunal, $ 402a.
IV. Municipal btatutbs not xxtratsrritorial, $ 403.

V. Persons violating municipal statute mat be proceeded against munici-
pally, 9 404.

VI. POUCT OF THE UNTFED STATES IS MAINTENANCE OF NBUTRAL RIGHTS, $ 405-

I. BIGHTS OF NEUTRAL.

1)M4T

TRADE WITH EITHER BELLIGERENT, AND HEREIN AS TO TRADE WITH COL-
ONIES NOT OPEN IN PEACE.

§388.

** With respect to the general principle which disallows to neutral
i^ationa, in time of war, a trade not allowed to them in time of peace, it
"^ V be observed :

I ^irst. That the principle is of modern date ] that it is maintained,
*8 18 believed, by no other nation but Great Britain; and that it was
honied by her under the auspices of a maritime ascendency, which
S. Mis. 162— VOL. Ill 32 497

§ 388.] NEUTRALITT. [CHAP. XXL

reudered such a principle subservient to her partionlar interest. The
history of her regulations on this subject shows that they have been
coiKstantly modified under the influence of that consideration. The
course of these modifications will be seen in an appendix to the fourth
vohnne of Robinson's Admiralty Reports.

'^ Secondly. That the principle is manifestly contrary to the general
interest of commercial nations/ as well as to the law of nations settled
by the most approved authorities, which recognize no restraints on the
trade of nations not at war, with nations at war, other than that it shall
be impartial between the latter, that it shall not extend to certain mili-
tary articles, nor to the transportation of persons in military service,
nor to places actually blockaded or besieged.

^' Thirdly. That the principle is the more contrary to reason and to
right inasmuch as the admission of neutrals into a colonial trade shut
against them in limes of peace, may, and often does, result from consid-
erations which open to neutrals direct channels of trade with the
parent state shut to them in times of peace, the legality of which latter
relaxation is not known to have been contested ; and inasmuch as com
merce may be, and frequently is, opened in time of war between a.
colony and other countries, from considerations which are not incident:
to the war, and which would produce the same effect in a time of peaca^
such, for example, as a failure or diminution of Jhe ordinary* sources (^^
supplies, or new turns in the course of profitable interchanges.

'^ Fourthly. That it is not only contrary to the principles and pnM^-
tice of other nations, but to the practice of Great Britain herself. It xai
well known to be her invariable practice in time of war, by relaxations^
in her navigation laws, to admit neutrals to trade in channels forbidden
to them in times of peace, and particularly to open her colonial tracle
both to neutral vessels and supplies to which it is shut in times of peace,
and that one at least of her objects in these relaxations is to give to
her trade an immunity fh)m capture, to which in her own hands it would
be subjected by the war.

'* Fifthly. The practice, which has prevailed in the British dominioflji*
sanctioned by orders of council and an act of Parliament [39 0. 3, ch. 98]
authorizing for British subjects a direct trade with the enemy, still far-
ther diminishes the force of her pretensions for depriving us of the co-
lonial trade. Thus we see in Robinson's Admiralty Beports, pamt^
that during the last war a licensed commercial intercourse prevailed
between Great Britain and her enemies, France, Spain, and Holland.
because it comprehended articles necessary for her manufactures and
agriculture, notwithstanding the effect it had in opening a vent to the
surplus productions of the others. In this manner she assumes to sua
pend the war itself as to particular objects of trade beneficial to herself,
while she denies the right of the other belligerents to suspend their
accustomed commercial restrictions in favor of neutrals. But the in-
justice and inconsistency of her attempt to press a strict rule on neatrala ,

498

iJBAP. XXL] trade with BELLIGERENTS. [§ 888.

is more forcibly displayed by the nature of the trade which is openly
carried on between the colonies of Great Britain and Spain in the West
Indies. The mode of it is detailed in the inclosed copy of a letter from a
Mr. Billings, wherein it will be seen that American vessels and cargoes^
after being condemned in British coarts under pretense of illicit com*
merce, are sent on British account to the enemies of Great Britain, if
not to the very port of the destination interrupted when they wete
American property. What respect can be claimed from others to a doc-
trine not only of so recent an origin and enforced with so little uni-
formity, but which is so conspicuously disregarded in practice by the
nation itself which stands alone in contending for it.

** Sixthly. Itisparticularly worthy of attention that the board of com-
missioners jointly constituted by the British and American Govern-
ments under the 7th article of the treaty bf 1794, by reversinu: condem-
nations of the British courts founded on the British instructions of
November, 1793, condemned the principle that a trade forbidden to neu-
trals in time of peace could not be opened to them in time of war, on
which precise principle these instructions were founded. And as the
T^versal could be justified by no other authority than the law of nations,
by which they were to be guided, the law of nations, according to that
tiibanal, condemns the principle here combatted. Whether the British
coiumissioners concurred in these reversals does not appear ; but
whether they did or did not, the decision was equally binding, and af-
fords a precedent which could not be disrespected by a like succeeding
tribooal, and ought not to be without great weight with both nations
in like questions recurring between them.

*^0d these grounds the United States ma^^ justly regard the British
captures and condemnations of neutral trade with colonies of the ene-
mies of Great Britain as violations of right ; and if reason, consistency,
or that sound policy which cannot be at variance with either, be allowed
the weight which they ought to have, the British Government will feel
Atifflcient motives to repair the wrongs done in such cases by its cruisers
wd courts."

Mr. ICadiaon, Sec. of State, to Bir. Monroe, Apr. 12, 1805. MSS. Inst., Mlniaters,
3 Am. St. Pap. (For. Rel.), 101.

The principle that <<a trade opened to neutrals by a nation at war,
on account of the war, is unlawful," has no foundation in the law of
nations.

Mr. Madison, Sec. of State, report of Jan. 25, 1^06. MSS. Dom. Let. See fiipra,
$359/.

Mr. Monroe, in a dispatch to Mr. Madison, August 20, 1805, states that
the British position is declared by Lord Mulgrave to be '^ that a neu-
tral power had no right to a commerce with the colonies of an enemy
in time of war which it had not in time of peace, and that every
extension of it in the former state, beyond the limit of the latter, was
-due to the concession of Great Britain, not to the right of the neutral

499

§ 388.] NEUTRALITY. [CHAP. XX]

power." (See 3 Am. St. Pap., 105, for a conference with Mr. Fox on thi
subject. »ee Mr. Monroe to Mr. Madison, April 28, 1806. 3 Am. Si
Pap. (For. Rel.), 118.

^' The rights of a neutral to carry on a commercial intercourse witl
every part of the dominions of a belligerent, permitted by the laws o
the country (with the exception of blockaded ports and contraband o
war) was believed to have been decided between Great Britain and th«
United States by the sentence of the commissioners mutually appointee
to decide on that and other questions of difference between the tw<
nations, and by the actual payment of damages awarded by then
against Oreat Britain for the infractions of that right. When, there
fore, it was perceived that the same principle was revived with other
more novel, and extending the injury, instructions were given to thi
minister plenipotentiary of the United States at the court of London
and remonstrances duly made by him on this subject, as will appear b]
documents transmitted herewith. These were followed by a partial an(
temporary suspension only, without any disavowal of the principle. H<
has, therefore, been instructed to urge this subject anew, to bring i
more fully to the bar of reason, and to insist on rights too evident anc
too important to be surrendered. In the mean time the evil is proceed
ing under adjudications founded on the principle which is denied
Under these circumstances the subject presents itself for the consider
ation of Congress."

President Jefferson, Special Message, Jan. 17, 1806.

The correspondence of Mr. Pinkney, United States minister at Lon
doD, in 1806-^08, with Mr. Canning, British foreign secretary, in refer
ence to the British order of council affecting the trade of the Unitec
States is found in 3 Am. St. Pap. (For. Eel.), 203 Jf, 222 jf.

<^ To former violations (by Great Britain) of maritime rights, anothei
is now added of verv extensive effect. The Government of that natioo
has issued an order interdicting all trade by neutrals between ports not
in amity with them, and being at war with every nation on the Atlanti<
and Mediterranean seas, our vessels are required to sacrifice their car
goes at the first ports they touch, or to return home without the benefi'
of returning to any other market. Under this new law of the ooeaa
our trade to the Mediterranean has been swept away by seizures anc
condemnations, and that in other seas has been threatened with thi
same fiftte."

President Jefferson's message of Oct. 27, 1807 ; 3 Am. St. Pap. (For. Bel.), S.

<^ The declaration which Her Britannic Majesty's Government pro-
poses to issue is distinct in interdicting to neutrals the coasting and co-
lonial trade with the belligerent, if not enjoyed by them previous to
the war. In regard to this trade, you are aware that Great Britain as-
serted principles, in the wars resulting from the French revolution, be-
fore she issued her obnoxious orders in council, which this country held

600

•CHAP. XXI.] TRADE WITH BELLIGERENTS. [§ 388.

to be in violation of the law of nations. Should she still adhere to
those principles in the coming conflict in Europe, and have occasion to
apply them to our commerce, they will be seriously controverted by the
United States, and may distur];) our friendly relations with her and her
allied belligerents. The liberal spirit she has indicated in respect to the
cargoes under a neutral flag, and neutral property which may be found
on board of enemy's ships, gives an implied assurance that she will not
attempt again to assert belligerent rights which are not well sustained
by the well-settled principles of international law."

Mr. Maroy, 8eo. of State, to Mr. Buchanan, Apr. 13, 1854. MSS. Inst., Gr. Brit.

Honse Ex. Doc. 103, 33d Cong., Ist seas.

•

The British rule, proclaimed in 1756, by which ^'direct trade with the
-enemies' colonies was made subject to restrictions," is discussed in a
work Qoder the title of ^' An examination of the British doctrine which
subjects to capture a neutral trade, not open in time of peace," written
by Mr. Madison. (See 2 Madison's Works, 229/.) The British view
of the question is stated in a pamphlet, by Mr. James Stephen, entitled
^' War in Disguise." The object of the British Qovemment, in which it
was zealously supported by Sir W. Scott, was to stamp with illegality
voyages from French or Dutch colonies to the United States and from
tbence to France or Holland. To sustain this the doctrine of '^ conti-
DQityof voyages" was invented, a doctrine which was caught up and
applied in the case of the Springl>ok, criticised at large in another sec-
tion. (Supraj § 362.) The doctrine, as applied by the British admiralty
^arts in 1801, was that unless a ship from a French colony landed her
goods and paid her duties in the port of the United States to which
she intermediately resorted on her way to France, her voyage to the
United States was to be held to be continuous with that from the United
^tateM to France. In 1805, however^ it was held in the case of the Essex,
^t if the duties were not actually paid, but were provided for by means
of debentures, the importation into the United States was not bona fide j
And the voyage was held to be continuous, notwithstanding the goods
^ere disembarked in New York. But aside from the technical diffi-
<!Qltie8 attending the doctrine of continuous voyages, as thus stated,
^Dd the ruin to which it sulgects neutral interests, it is repugnant to
those principles of sovereignty which are at the basis of international
l&w. A sovereign has a right to regulate his trade as he chooses. He
^V impose tarifGs, embargoes, non-intercourse, as he deems best. He
^8.y say, **At peace no one shall trade with my colonies but myself."
If he has power to impose one kind of limitation in peace, he can impose
another kind of limitation in war. Since no one disputes a neutral's
nght to trade between ports of the mother country, it is difficult to see
<)Q what ground rests the denial of a neutral's right to trade between
the port of a colony and that of the mother country. War necessarily
Sreatly abridges neutral commerce by exposing it to confiscation for
^ntraband and for blockade-running. To permit one belligerent to
Bhot out neutrals from a commerce which the other belligerent may
^pen to them, such commerce not being in contraband of war or in
evasion of blockade, would impose upon neutrality burdens so intoler-
able as to make war, on its 'part, preferable to peace. The doctrine of
^'continuous voyages," also, as thus interpreted, is open to all the objec-
tioDS of a paper blockade; it enables a belligerent cruiser to seize aU
neutrals going to a belligerent port if they hold produce of the colom^i^

501

§ 388.] NEUTRALITY. [CHAP. XXI.

of that belligerent, thongh there be no pretense of a blockade of either
colony or the mother state. Great Britain, also, it was urged, had no
right to complain of this relaxation by a hostile sovereign of his colo-
nial regulations, since she had repeatedly varied in war her colonial
policy of trade, relaxing it so as to enable her colonies to have the ad-
vantage of neutral commerce.

2 Lyman's Diplomacy of the United States, chap. i. The Springbok case is
criticised at large, iupra, ^ 362. The defects in Sir W. Scott's reasoning as
to continnouH voyages, and the want of present anthoritatiTeness in bis
conclusions, are discnssed iupra, $$ 238, 329a.

"The doctrine of continued or continuous voyages," says Dr. Woolsey
(Int. Law, app. iii, n. 27), "which Sir W. Scott, afterwards Lord Stow-
ell, origiuatea, deserves to be noticed, and may be noticed here, al-
though it first arose in reference to colonial trade with another country
carried ou by neutrals. As the English courts condemned such trade,
the ueutrals io the first part of this century, especially shippers and
captains belonging to the United States, tried to evade the rule by stop-
ping at a neutral port and seeming to pay daties, and then, perhaps,,
after landing and relading the cargoes, carried them to the mother-
country of the colony. The motive for this was, that if the goods in
question were bona fide imported from the neutral country, the trans-
action was a regular one. The courts held, that if ah original inteution
could be proved of carrying the goods from the colony to the mother
country, the proceedings in the neutral territory, even if they amonntefl
to landing goods and paying duties, could not overcome the evidence-
of such intention ; the voyage was really a continued one fiirtfully in-
terrupted, and the penalties of law had to take ofiect. Evidence there
fore, of original intention and destination was the turning-point in such
cases. (See, especially, the caseof the Polly, Robinson's Rep., ii,3l>l-.'»72;
the cases of the Maria and the William, ibid., v, 365-372, and 38.5-400,
and the cases there mentioned.)

"The principle of continued voyages will apply when cases of con-
traband, attempt to break blockade, etc., come up before courts which
accept this English doctrine. In our late war many British ves^^els
went to Nassau, and either landed their cargoes destined for Coufeiler-
ate ports there to be carried forward in some other vessel, or stopped
at that port as a convenient place for a new start towards Charleston or
some other harbor. If an intention to enter a blockaded port can be
shown, the vessel and the cargo, as is said in the text, are subject to
capture according to English and American doctrine from the time of
setting sail. Now the doctrine of continued voyages has been so ap-
plied by our Supreme Court that it matters not if the vessel stops at a
neutral port, or unlades its cargo and another vessel conveys it onward,
or if formalities of consignment to a person at the neutral port, or the
payment even of duties are used to cover the transaction, provided des-
tination to the blockaded port, or, in the case of contraband, to the hos-
tile country, can be established, the ship on any part of its voyage, and
the cargo before and after being landed, are held to be liable to confis-
cation. Or, again, if the master of the vessel was ordered to stop at the
neutral port to ascertain what the danger was of continuing the voyage
to the blockaded harbor, still guilt rested oq the parties to the transac
tion as before. All this seems a natural extension of the English prin-
ciple of continued voyages, as at first given out ; but there is danger
that courts will infer intention on insufficient grounds. A still bolder

502

CHAP. XXI.J . TRADE WITH BELLIGERENTS. [§ 388.

extensioQ wa.s given to it by oar coarts in the case of vessels aud goods
boand to the Rio Orande, the goods being then carried up by lighters
to MataiDoras. We could not prohibit neatrals from sending goods to
the Mexican side of that river ; bat if it could be made to appear that
the goods were destined for the side belonging to the United States,
thatwa^ held to be sufficient ground for condemnation of them ; although,
in order to reach their destination, they would need overland carriage
over neutral territory. (See Prof. Bernard's Brit. Neutral., 307-317, and
comp. Dana's note 231 on Wheaton, § 508.)"

The advantages claimed to be derived by Great Britain from the
adoption of the rule of continuity, and the injury inflicted on neutrals
by the application of this restriction, are thus stated in the London
Quarterly Beview for March, 1812 (vol. 7, p. 5): "It will be sufficient for
oar purpose to observe that so far was the rule of 1756 relaxed that the
ports of the United States of America became so many entrepdts for the
mauafactures and commodities of France, Spain, and Holland, from
whence they were re-exported, under the American flag, to their re-
spective colonies ; they brought back the produce of those colonies to
the ports of America; they reshipped them for the enemies' ports in
Europe; they entered freely all the ports of the United Kingdom with
cargoes brought directly from the hostile colonies; thus, in fact, not only
carrying on the whole trade of one of the belligerents w^ich that bellig-
erent would have carried on in time of peace, but superadding their
own and a considerable part of ours. Valuable cargoes of bullion and
specie and spices were nominally purchased by Americans, in the east-
em colonies of the enemy, and wafted under the American flag to the
i«al hostile proprietors. One single American house contracted for the
whole of the merchandise of the Dutch East India Company at Batavia,
amounting to no less a sum than one million seven hundred thousand
pounds sterling. The consequence was that, while not a single mer-
chant ship belonging to the enemy crossed the Atlantic, or doubled the
Cape of Good Hope, the produce of the eastern and western worlds sold
cheaper in the markets of Prance and Holland than in our own. • • •
The commerce of England became every month more languid and pros-
trate, till reduced, as justly observed by a member of the House of Com-
^on^ 'to a state of suspended animation.'"

In discussing the controversy in 1810-'ll between Great Britain and
tbe United States in respect to the orders of council, the Edinburgh Be-
^ew for November, 1812 (vol. 20, p. 453), thus speaks :

'4t was long the anxious business of the American minister, as ap-
P^^ from the documents before us, to procure by persuasion an aban-
donment of the measures hostile to the American trade. He urged
hiB case on views of justice and general policy ; he calmly combatted
^ke pretexts by which he was met ; he boldly and pointedly asserted
'^at the claims of this country must, sooner or later; be abandoned :
^U he added, what ought never to be forgotten, that they were unjust^
^Qd that time, therefore, could do nothing for them. His representa-
tions were met by declarations of ' what His Majesty owed to the honor,
^^'g^nity, and essential rights of his crown,' and by all the other sounding
coinfflonplaces used on such occasions. These sentiments were after-
'fards explained at greater length, and promulgated to the world in the
'leliberate record of a sfate paper. But in si)ite of the houor of His Mnj-
fstj thus pledged to these obnoxious measures, they were repealed. A
laborious investigation into their merits ended in their unqualifitd rep-

§ 388.] NEUTRALITY. [CHAP. 2

robation and abandonment ; their authors were unable to look in
fa€e the scenes of beggary, disorder, and wretchedness which tl
policy had brought on the country; they were borne down by the ci
of suffering millions, and they yielded to necessity what they 1
formerly refused to justice. This was clearly, therefore, an act of
willing submission. It bore not the stamp of conciliation; and the o
inference to be drawn from it was that the plotters of mischief, be
fairly caught in their own snare, were glad to escape, on any ten
from the effect of their ill-considered measures. • • • There is
a man in the Kingdom who can doubt that if the orders in council 1
been rescinded six months sooner, the war might have been entii
avoided, and all other points of difference between the countries a^jus
on an amicable footing."

See same Review, vol. 11, 24 Oct., 1807.

As to licenses by one belligerent authorizing the party licensed
trade with the other, the following distinctions are taken :

^<A license is a sort of safe-conduct, granted by a belligerent state
its own subjects, to those of its enemy, or to neutrals, to carry on a tn
which is interdicted by the laws of war, and it operates as a dispen
tion from the penalties of those laws, with respect to the state grant
it, and so far as its terms can be fairly construed to extend. The offlc
and tribunals of the state under whose authority they are issued ;
bound to respect such documents as lawful relaxations of the ordini
state of war ; but the adverse belligerent may justly consider them
per %e a ground of capture and confiscation. Licenses are neeessai
strtctijuris^ and cannot be carried beyond the evident intention of th<
by whom they are granted ; nevertheless, they are not construed w
pedantic accuracy, nor will their fair effect be vitiated by every sli^
deviation from their terms and conditions. Much, however, will depe
upon the nature of the terms which are not complied with. Thui
variation in the quality or character of the goods will often lead to mc
dangerous consequences than an excess of qiiantity. Again, a liceo
to trade, though safe in the hands of one person, might become ds
gerous in those of another ; so, also, with respect to the limitations
time and place specified in a license. Sach restrictions are often of n
terial importance, and cannot be deviated from with safety. • • •
the United States, as a general rule, licenses are issued under the a
thority of an act of Congress, but in special cases and for purposes ii
mediately connected with the prosecution of a war, they may be granti
by the authority of the President, as Commander in Chief of the milita
and naval forces of the United States.''

2 Halleok'B Int. Law (Baker's ed.), 364. See farther as to licenses, iupra, i 3

The objections to the accepting of licenses from an enemy are th
Stat ed by Judge Story in the Julia (1 Gall., 233; 8Cranch,181). Thepr
ciple, he states, is that ^4n war all intercourse between the subjects »
citizens of the belligerent countries is illegal, unless sanctioned by t
authority of the Government or in the exercise of the rights of homi
ity." He insists that a license from an enemy must be regarded as
agreement with such enemy that the licensee will conduct himself
a neutral manner, and avoid any hostile acts toward such enemy, b
he holds, therefore, that acting under such a license is a violation
the laws of war, and of a citizen's duties to his own Government. " C
an Auterican citizen," he asks, <^ be permitted in this manner to aU

504

CHAP. XXI.] PKEE DISCUSSION ALLOWED. [§ 388.

out for himself a neatxality upon the ocean when his country is at warf

Can he justify himself in refusing to aid his countrymen, who have

fallen into the hands of the enemy on the ocean, or decline their rescue f

Can he withdraw his personal services when the necessities of the

natiou require themf Can an engagement be legal which imposes upon

him the temptation or necessity of deeming his personal interests at

variance with the legitimate objects of his Government! " He declares

that incompleteness of a voyage, under license from the enemy, is no

defense, for the vessel is liable to capture at the instant the voyage

under such license is commenced. Wherever the object of the voyage

is prohibited, its inception with the illegal intent completes the offense

to which the legal penalty attaches. This case of illegal trading, under

a license from the enemy, is only a particulaE. application of a universal

rale. Nor can it be a defense that the trade is not subservient to the

enemy's interest, as the condemnation of such licensed vessel and cargo

rests upon the broad ground of the illegality of such voyage.

See 2 Halleok'8 Int. Law (Baker's ed.), 169/.

^Neutrals may establish themselves, for the purposes of trade, in ports

conreDient to either belligerent; and may sell or transport to either

sQch articles as they may wish to buy, subject to risks of capture for

violation of blockade or for the conveyance of contraband to belligerent

pons.

The Bermoda, 3 WaU., 5;4.

Voyages from neutral ports to belligerent ports are not protected in
respect of seizure, either of ship or cargo, by an intention, real or pre-
tended, to touch at intermediate neutral ports.
IMd.

(2) Mat PERlilT FREE DISCUSSION AS TO FOREIGN SOVEREIONS.

§389.

The topic of sympathy with foreigu political struggles is considered
'Hpra, § 47a; that of non-prohibition of documents assailing foreign
Governments supra^ § 56.

On July 4, 1816, at ^^ a public feast at Baltimore,'' Mr. Skinner, the
postmaster at that city, gave a " festive" toast supposed to retiect on
^he character of the then French Government. The French minister at
Washington called upon Mr. Monroe, then Secretary of State, to cause
^« postmaster to be dismissed, and to apologize for the alleged insult.
This was refused by Mr. Monroe, who stated in reply that on matters
of this character the Government of the United States exercised no
control.

Mr. Monroe, Sec. of State, to Mr. Gallatin, Sept. 10, 1816. MSS. Inst., Ministers.

Subsequently, in retaliation for the " toast," the functions of the French
J^iisal at Baltimore were suspended by the French minister, who had
^ken additional offense on account of a toast given at a 'Sew York din-
ger to <^ Marshal Grouchy," who, the French minister said, was not a

** marshal."

See letter of Mr. Monroe to Mr. J. Q. Adams, Not. 2, 1616.

505

§ 389.] NEUTRALITY. [CHAP. XXI

The French Government having asked for the dismifisal of Mr. Skin-
ner in consequence of his " disrespectful" conduct, the Duke of Biche
lien, minister of foreign affairs, in an interview with Mr. Oallatin,
minister of the United States at Paris, said that '4n asking for the dis-
mission of Mr. Skinner there was no intention of giving offense ; it was
only st-ating the kind of reparation which appeared most natural, and
which would be satisfactory. • • • l am sorry to say that no ex-
planation I could give appeared to make any impression on him. • • •
He said that they would not preserve any public agent in the town where
His Majesty had been publicly insulted.''

Mr. Oanatin to Mr. Monroe, Nov. 21, 1816. 2 GaUatin's Writings, 9.

The Duke of Richelieu subsequently told Mr. Gallatin that " the re-
fusal to dismiss the postmaster at Baltimore,'' would indispose the
Government of Louis XVI II to take steps towards paying for Napo-
leon's spoliations.

Same to same, Jan. 20, 1817 ; ibid,, 22.

The Government of the United States, when called upon by the Min-
ister of Russia to explain certain newspaper <' calumnies" on his Qov-
ernment, to which the Government of the United States was intimated
to have " directly or indirectly given its support," answered, through
the Secretary of State, that no further explanations could be given
'^ until an imputation so injurious to the reputation of this Government,
and so inconsistent with its sincere professions of amity for Russia and
respect for its sovereign, shall be withdrawn."

Mr. Livingston, Seo. of State, to Mr. de Sacken, Dec. 4, 1832. MSS. Notes, For.
Leg.

The United States Government has no power, under our Constitution
and laws, to interfere with publications in the States critising foreign
Governments, or encouraging revolt against such Governments.

Mr. Cass, Sec. of State, to Mr. Molina, Nov. 26, 1860. MSS. Notes, Cent. Am.

^' Whatever be their purpose, it is not alleged or even understood
that they have instigated any insurrection in Ireland, or sent out from
the United Stat^ for such a purpose to that country or elsewhere any
money, men, or arms, or that any sedition or rebellion actually exists in
Ireland. Should they attempt to violate the neutrality laws in regard
to Great Britain, the laws of the United States and regulations already
sanctioned by the President are ample to prevent the commission of
that crime. It is thus seen that a case has not arisen in which this
Gk>vernment could with right, or ought to, interfere with the meetings
of the Fenian Brotherhood. I may properly add that this Government
has no sufficient grounds to apprehend that any such case will occur,
unless renewed and systematic aggressions from the British ports and
provinces should defeat all theeffoits of this Government to maintain and
preserve pea<;e with Great Britain. Under these circumstances any at-
tempt to visit the Fenian Brotherhood with official censures is unneoes-
sary, and, therefore, in the belief of this Government, would be unwise,
as it would be manifestly unconstitutional. The attorney-general of

506

CHAP. XXI.] SUPPLYING BELLIGERENTS. [§ 388.

the State of Loaisiana is responsible to the State OoTernment. and tht
people of that State, exclusively of this Qovemmenf

Mr. Seward, See. of State, to Mr.Bamley, Mar. 20, 1865. MSS. Notes, Gr. Brit.

^^ The Fenian agitation is a British and notan American movement. A
movement for which the agitators have secured to themselves the ben-
efits of refuge, which the Constitution and laws of the United States
afford to exiles and immigrants from foreign lands.

*'* The only question for this €k)vernment is, not whether the motives
or designs of the agitators in regard to Ireland are just, wise, beneficent
or humane, or the reverse, but whether, in seeking to promote their de-
Bi^ns, they commit any violation of the laws of the United States which
have been adopted to prevent military or naval aggression by persons
who al^ amenable to those laws, against nations whom the United States
maintain relations of peace and Mendship.

^< Thus far no such violation of positive law has been brought to the
knowledge of this Government by either its own agents, who are believed
to be vigilant, or through any complaint from the British legation. No
restraint has been put upon British agents of observation, and no ob-
stacles placed in their way.

^* Neither the character of the agitation, nor the condition of our inter-
national relations is such as to render it wise for this Government to
denounce the proceedings of the agitators as long as they confine them-
selves within those limits of moral agitation which are recognized as
legitimate equally by the laws of the United States and by those of
Great Britain."

Mr. Seward, See. of State, to Mr. Adams, Mar. 10, 1866. MSS. Inst., Gr. Brit.
As to ezpreesioD of Bympathy with Ireland, see Mr. Banks' report, July 25, 1866;
Honse Rep. 100, 39th Cong., let sess.

" The Executive of the United States • • • is incompetent to pass
on the subversive character of utterances alleged to contrai'^ene the laws
of another land."

Mr. Bayard, Sec. of State, to Mr. Valera, July 31, 188o. MSS. Notes, Spain ;
For. Rel., 1885. For remainder of note, seeiw/Va, $ 402.

It has been already noticed that foreign Governments, in their inter-
coarse with this Government, are to hold the Department of State to be
the sole organ of the Executive, and will not be permitted to comment
on the domestic politics of the nation.

Svpia, $$ 79 jr.

(3) Mat permit subjects to furnish fuxds or supplies to bblliobrbnts.

§ 390.

Mr. Pickering's instructions of March 2, 1798, to Messrs. Pinclmey,
MarshaU, and Gerry, are cited by Chancellor Kent, as maintaining
that *^a loan of money to one of the belligerent parties is considered to

507

§ 390.] NEUTRALITY. [CHAP. XXI.

be a violation of neatrality.'^* Bat the loan proposed in this case was
to be from the political representatives of a neutral state to a bellig-
erent.

^^ I have the honor to acknowledge the receipt of your note of the 21st
instant, in which yon call the attention of the Department to the means
employed, as alleged, by persons in this country who plot against the
peace of Cuba, for the accomplishment of their designs, and more
especially to the method of acquisition through the sale of lottery
tickets in the United States.

^' I cannot refrain from expressing the appreciation felt by the Govern-
ment, of your assurances, so frankly and courteously given, touching
the energy and sincerity with which the United States has endeavored
to prevent the forwarding of aid from our shores to parties engaged in
promoting insurrection in Cuba, while at the same time, as regards the
special communication of your note, I beg to observe that so far as
concerns furnishing ftinds to support Cuban insurrections, this Govern.
ment can do no more than to recur to the often announced intention to
prosecute all persons concerned in disturbing the peace of a friendly
foreign state, so far as permitted by the neutrality and cognate statute
of the United States.

^' So far as concerns the sale of lottery tickets in particular States, the
matter is for State legislation. There is no Federal statute prohibiting
sales either of lottery tickets or any other article of traffic, on the
ground that the proceeds are to be applied to aid insurgents in a for-
eign land, nor is it a principle of international law that a sovereign is
bound in any sense to prohibit sales of any kind on the ground that
the proceeds might go to unlawful objects.

'^ There are, however, in most of the States in the Union statutes pro-
viding for the punishment of those concerned in lottery tickets, without
reference to .the object to which their proceeds may be applied. To
secure the prosecution and conviction of the offenders in such cases the
proper course is to apply to the authorities of the State where the lot-
tery tickets complained of are sold, bringing the matter to their atten-
tion by an oath, made by a proper presentation to a State magistrate.''

Mr. Bayard, Seo. of State, to Mr. Valera, Mar. 31, 1885. M8S. InAt., Spain :
For. Bel., 1885.

The furnishing funds by subjects of a neutral state to relieve suffering
in a belligerent state is not a breach of neutrality. During the Franco-
German war large sums of money were sent from Germans in this coun-
try to their friends in Germany, for the relief of sufl'erers in the hos-
pitals, and large sums were also sent by persons in this country sympa
thizing with France to the French hospitals; but neither in respect to
such contributions nor in respect to meetings called to express sympathy
with the one or the other belligerent was it maintained that such action
constituted a breach of neutrality. The English Government has even
gone further than this. In 1860 a. revolt took place in Naples which
was, if not instigated, at least materially aided by the King of Bar-
SOS

CHAP. XXI.] MUNITIONS OF WAB. [§ 891,

clinia. The liberal EDglish press took an active part in encooraging the
insurgents; they also received from England important material aid.

Whart. Com. Am. Law, $ 245. See Hall, Int. Law, $ 216.

It is remarkable that a contrary view should be taken 1[>y Bluntschli
(§ 768), Galvo (§ 1060), and Phillimore (iii, 147). Mr. Hall mentions
that during the Franco-German war the French Morgan loan and part
of the North German Confederation loan were issued in England. On
^the other hand, it has been held that a suit cannot be maintained on a
loan made expressly to affect a belligerent object (Kennett v. Chambers,
14 How., 38), or to aid in an insurrection in a foreign state against a
Government at peace with the state of the lender. De Wtltz v, Hen-
dricks, 9 Moore C. P., 6865 2 Bing., 314.

In De Wtitz v. Hendricks, above cited, it was held that British
courts of justice will not take notice of or afford any assistance to per-
sons who, in Great Britain, make or undertake to make loans to a bellig-
erents at war with a nation at peace with Great Britain. On June 17
and Jane 19, 1823, the King's advocate (Robinson), the attorney-gen-
eral (Gifford), and the solicitor-general (Copley), gave an opinion to Mr.
Canning to the effect that ^^ reasoning on general principles, we should
be inclined to say that such subscriptions in favor of one of two bellig-
erent states, being inconsistent with the neutrality declared by the
government of the country and with the law of nations, would be illegal
and subject the parties concerned in them to prosecution for a misde-
meanor, on account of their obvious tendency to interrupt the friend-
ship subsisting between this country and the other belligerent, and to
involve the state in dispute, and possibly in the calamities of war. It
is proper, however, to add that subscriptions of a similar nature have
formerly been entered into (particularly the subscription in favor of
the people of Poland in 1792 and 1793), without any notice having been
taken of them by the public authorities of the country, and without
any complaint having, as far as we can learn, been made by the powers
whose interests might be supposed to have been affected by such sub-
scriptions. Neither can we find any instance of a prosecution having
been instituted for an offense of this nature, or any hint at such a pro-
ceeding in any period of our history. We think, therefore, even if it
could be proved that the money had been actually sent in pursuance of
the subscription,^ it is not likely that a prosecution against the individ-
uals concerned in such a measure would be successful.

*' But until the money be actually sent, the only mode of proceeding^
as we conceive, -would be for counseling or conspiring to assist with
money one of the belligerents in the contest with the other, a prosecu-
tion attended with still greater difficulty."

2 HaUeok'B Int. Law (Baker's ^d. ), 197.

(4) Or munitions of was.
§ 391.

<< Our citizens have always been free to make, vend, and export arms.
It is the constant occupation and livelihood of some of them. To suppress
their callings, the only means, perhaps, of their subsistence', because a
war exists in foreign and distant countries, in which we have no con-
tenkj would scarcely be expected. It would be hard in principle and

609

§ 391.] NEUTRALITT. [CHAP. XXI,

impossible in practice. The law of nations, therefore, respecting the
rights of those at peace, does not reqaire from them such an internal
derangement in their occnpations. It is satisfied with the external pen-
alty pronounced in the President's proclamation, that of confiscation of
such portion of these arms as shall fall into the hands of the belligerent
powers on their way to the ports of their enemies."

Mr. Jefifenon, 8eo. of State, to miniBter of Great Britain, May 15, 1793 ; 3 Jeff.
Works, 558. See I Am. St. Pap. (For. Bel.), 69,147. A similar note was
addressed on the same day to the minister of France. See 3 JetL Works. 560

^' The pai*chasing within and exporting l^m the United States, by
way of inerchandisCi articles commonly called contraband, being generally
warlike instruments and military stores, is free to all the parties at
war, and is not to be interfered with.

Mr. Hamilton's Treasury circular of Aug. 4, 1793. 1 Am. St. Pap. (For. Bel.),
140.

'^ In both the sections cited" (from Yattel) ^<the right of neatrals to
trade in articles contraband of war is clearly established; in the first,
by selling to the warring powers who come to the nentral conn try to
buy them ; in the second, by the neutral subjects or citizens carrying
them to the countries of the powers at war, and there selling them."

Mr. Pickering, Sec. of State, to the minister of France, May 15, 1796. Cited
from 1 Am. St. Pap., 649, by Mr. Carpenter, June 3, 1872, in the Senate of
the United States, when sustaining the report of the Senate committee
holding that the sale of refuse ordnance stores in 1871 by the Ctovemment
of the United States to parties who were agents of the French GoTcmment
was not in contravention of international law.

^^ In pursuance of this policy, the laws of the United States do not
forbid their citizens to sell to either of the belligerent powers articles
contraband of war, or take munitions of war or soldiers on board their
private ships for transportation, and although in so doing the individ-
ual citizen exposes his property or person to some of the hazards o£
war, his acts do not involve any breach of national neutrality, nor ofl
themselves implicate the Government. Thus, during the progress o
the present war in Eun^e, our citizens have, without national respons
bility therefor, sold gunpowder and arms to all buyers, regardless
the destination of those articles. Our merchantmen have been an
still continue to be largely emploved by Great Britain and by Fran
in transporting troops, provisions, and munitions of war to the princip
seat of military operations, and in bringing home their sick and wound
soldiers ; but such use of our mercantile marine is not interdicted eit
by the international or by our municipal law, and therefore does
compromit our neutral relations with Russia."

President Pierce, Second Annnal Message, 1854 ; adopted by Sir W. Hsro^^m^
in Historicus, 132.

510

CHAP. XXI ] MUNITIONS OF WAR, [§ 391.

^'The mere exportation of arms and munitions of war from the United
States tu a belligerent country has never, however, been considered as
ail oDeiise against the act of Congress of the 20th of April, 1818. All
WUigereuts enjoy this right equally, and a privilege which is open to
all laiiiiot justly be complained of by any one party to a war. Guate.
mala, however, has a right under the law of nations and under her
Iri'aty with the United States to seize contraband of war on its way to
ber enemy, and this Government will not complain if she should exer-
cise this right in the manner which the treaty prescribes."

Mr. Marcy, Sec. of State, to Mr. Molina, Mar. 16, 1854, MSS. Notes, Cent. Am.

** It is certainly a novel doctrine of international law that traffic by

citizens or subjects of a neutral power with belligerents, though it

^iioald be in arms, ammunition, and warlike stores compromits the

iieatrality of that power. That the enterprise of individuals, citizens

of the United States, may have led them in some instances, and to a

linii ted extent, to trade with Eussia in some of the specified articles is

uot denied, nor is it necessary that it should be, for the purpose of vin-

<lica.ting this Government from the charge of having disregarded the

duties of neutrality in the present war."

Mr. Marcy, Sec. of State, to Mr. Buchanan, Oct. 31, 1855. MSS. Inst., Or.
Brit.

^^ Private manufacturing establishments have been resorted to for

P^^'der, arms, and warlike stores, and immense quantities of provis-

ioQa have been furnished to supply their armies in the Crimea. In the

face of these facts, open and known to all the world, it certainly was

not expected that the British Government would have alluded to the

^'^<7 Umited traffic which some of our citizens may have had with Bus-

^^^y as sustaining a solemn charge against this Government for viola-

^^^ neutral obligation towards the allies. Eussia may have shared

^^ntily, but the allies have undoubtedly partaken largely in the bene-

^^ derived from the capital, the industry, and the inventive genius of

-^itAerican citizens in the progress of the war ; but as this Government

^^ had no connection with t^ese proceedings, neither belligerent has

^^yjust grounc^ of complaint against it."

/Md.

The action of the United States Government in forbidding clearances
^^ shipments of arms to other countries during the civil war was not
^Used by the exigencies of the war, and gave no preference to either
^^ the belligerents then at war in Mexico, ^his prohibition did not ex-
"^^nd to the shipment of wagons ; and the Mexican Government, on the
S^tieral principles of international law, cannot complain of the shipment
f^om New York of wagons purchased for the use of the French troops
*^ Mexico.

Mr. Seward, Sec. of State, to Mr. Romero, Dec. 15. 1862. MSS. Notes. Mez.

Some to same, Jan. 7, 1863 ; ibid.

511

§ 391.] NEUTRALITY. [CHAP.

Transportation of arms or money from the United States to either of
the belligerents in Mexico is not a breach of neatrality, either under
international law or the municipal law of the United States.

Same to same, Aog. 7, 1865 ; ibid.

Early in 1872 complaints were made to the Senate of the United
States that certain ^^ sales of ordnance stores " had been '* made by the
Government of the United States during the fiscal year ending the 30th
of June, 1871, to parties who were agents of the French Grovemment^
such stores to be used by France in the war then pending with Germany.
A committee was appointed to investigate the subject, and on June
30, 1871, this committee, through Mr. Carpenter, chairman, submitted
a report, in which it was observed that the Gk)vemment being in pos-
session, at the close of the civil war, of a large quantity of ^^ muskets
and other military stores,'' for which it had no occasion, a statute waa
passed in 1868 (15 Stat. L.. 250), authorizing the sale of such arms and
stores as were '^ unsuitable " for use. Under this provision certain
large sales were made ^^ without " (as the report stated) ^Hhe least pref-
erence to purchasers as to opportunities or conditions of purchase, ex-
cept that persons were excluded from the opportunity to purchase who
were suspected of being agents of France, then at war with Germany.'^

On the question whether the sales were '^ made under such circum-
stances as to violate the obligations of the United States as a neutral
power pending the war between France and Germany," the committee
reported as follows:

'< This subject involves two questions — one in regard to the law appli-
cable to the transactions or the 'question what the Government might
do under the circumstances, and the other a question of fact. What wcls
done f As to the first question, it is the duty of a power desiring to
respect the obligations of neutrality, to maintain strict impartiality in
regard to the belligerent powers. This, however, is more a question of
intention than of fact. If a nation be under treaty obligations with
another^ the treaty having been entered into when no war was existing
or anticipated, to famish such other nation ships or other supplies in
the event of a future war, the obligations of such a treaty may be dis-
chargeil during the existence of sueh war without impairing the position
of the contracting nation as a neutral. So if a nation has a fund on hand
which it is accustomed to loan, or is engaged in the manufacture and
sale of arms and other military supplies, it may loan such money or
prosecute such sale during the existence of war between other nations,
provided it does so in the fair pursuit of its own interest, and without
any intention of influencing the strife."

After quoting Yattel to sustain this position, the committee went on
to say:

** Congress having, by the act of 1868, directed the Secretary- of War
to dispose of these arms and stores, and the Government being engaged
in such sales prior to the war between France and Germany, had a right
to continue the same during the war, and might, in the city of Wash-
ington, have sold and delivered any amount of such stores to Frederick
William or Louis Napoleon in person, without violating the obligations
of neutrality, providing such sales were made in good faith, not for the
purpose of infiuencing the strife, but in execution of the lawful purpose
of the Government to sell its surplus arms and stores."

It was then stated that after certain sales to Bemington & Sons had
been agreed on, but before delivery, the Secretary of War received j^

512

CHAP. XXL] munitions OP WAB. [§ 391,

telegram, which led him '^ to saspect that Bemington & Sons might be
purchasing as agents of the French Government," and he then gave
orders that no further sales should be made to them. The sale already
made, however, was not repndiated, and the articles were deliver^
subsequent to tne reception of the telegram.

The committee, after an examination of the facts, reported as fol-
lows:

^^ Your committee, without hesitation, report that the sales of arms
and military stores during the fiscal year ending June 30, 1871, were
not made under such circumstances as to violate the obligations of our
<xovemment as a neutral power; and this, to recapitulatey for three
reasons: (1) The Eemingtons were not, in fact, agents of France during
the time when sales were made to them ; (2^ if they were such agents,
such fact was neither known nor suspected by our Government at the
time the sales were made ; and (3), if they had been such agents, and
if that fact bad been known to our Government, or if, instead of send-
ing agents, Louis Kapoleon or Frederick William had personally ap-
peared at the War Department to purchase arms it would have been
lawful for us to sell to either of them, in pursuance of a national policy
-adopted by us prior to the commencement of hostilities."

Beport of the Senate Committee on the sale of arms by the Ordnance Depart-
ment, May 11, 1872 ; 42d Cong., 2d sess., Bep. 183. See also Honse Bep.
i6, 42d Cong., 2d seas. t

The question of sale of munitions of war in the Franoo-Oezman war is discussed
at large in 3 Fiore's droit int. (2d ed., trans, by Antoine, 1886), $ 1561.

Perels, Int. Seerecht, 251, says that the Government of the United
States sold in October, 1870, at pablic auction 500,000 muskets, 163 car-
bines, 35,000 revolvers, 40,000 sabers, 20,000 horse trappings, and 60
batteries with ammunition; and that the export from New xork to
France from September to the middle of December of that year in-
claded 378,000 muskets, 45,000,000 patroneny 55 cannon, and 2,000 pis-
tols. He adds that these facts do not require comment.

^' Beferring to Mr. Adee's Nos. 209, 214, and 216, it is presumed that
before the receipt of this jou will, under your general instructions, have
asked an explanation of the letter of General Burriel to the editor of
the Bevue des deux Mondes.

'< General Burriel founds his justification on the assertion that he
acted under the decree of the captain-general of Cuba of March, 1869,
iu which it was said :

"'Yessels which may be captured in Spanish waters, or on the high seas near to the
ubnd, having on board men, arms, and munitions, or effects, that can in any manner
oontribate, promote, or foment the insurrection in this province, whatsoever their
^etlTation and destination, after examination of their papers and register, shall be
^ /octo considered as enemies of the integrity of onr territory, and treated as pirates,
^ Moordance with the ordinances of the navy. All persons captared in snch vessels,
^thout regard to their number, will be immediately executed.'

^^Immediately on the receipt of this decree at this Department, I
^te to Mr. Lopez Boberts as follows respecting it :

'"It is to be regretted that so high a functionary as the captain-general of Cuba
^oold, as this paper seems to indicate, have overlooked the obligations of his Gtovem-
^^t pQisoant to the law of nations, and especially its promises in the treaty between

S. Mis. 162— VOL. Ill 33 513

fi 391.] NEUTRALITY, [CHAP. XX

the United States and Spain of 1795. Under tliat law and treaty the United Stat
expect for their citizens and vessels the privilege of carrying to the enemies of Spai
whether those enemies he claimed as Spanish sabjeots or citizens of other coontrii
subject only to the requirements of a legal blockade, all merchandise not oontrabai
of war. Articles contraband of war, when destined for the enemies of Spain, are li
ble to seizore on the high seas, bat the right of seizure is limited to such artlcdesonl
and no claim for its extension to other merchandise, or to persons not in the oivj
military, or naval service of the enemies of Spain, will be acquiesced in by theUnit^
States. ,

'"This Government certainly cannot assent to the punishment by Spanish authoi
ties of any citizen of the United States for the exercise of a privilege to which he mi
be entitled under public law and treaties.

" 'It is consequently hoped that his excellency the captain-general of Cuba wi
either recall the proclamation referred to, or will give such instructions to the prop
officers as will prevent its illegal application to citizens of the United States or the
property. A contrary course might endanger those ^endly and^oordlal relations b
tween the two Governments, which it is the hearty desire of the President should 1
maintained.'

^< It has been supposed at this Department that in oonseqaenoe i
these representations this highly objectionable decree was abroffate(
It was therefore with no little surprise that information was receive
of the assertion that it is regarded as Still in force. It is deemed in
portant to have^accorate information on this point.

<< You are therefore instructed, as soon after the receipt of this i
possible, to inquire whether it be true, as stated by General Burrie
that the decrees of March 24, 1869, had not been abrogated when th
executions took place at Santiago de Cuba ; also whether those decreei
or anything equivalent to them, respecting jurisdiction on the high sea
are regarded as still in force ; also whether the executions by Gener
Burriel's orders are regarded as having been made under authority •
law.

<' It is supposed that the neglect hitherto of the Government of 8p«ki
to institute steps for the punishment of General Burriel and his ass
ciates in the bloody deeds at Santiago de Ouba has been caused by tl
extraordinary political condition of the peninsula. If this suppositic
is incorrect it is important that we should know that fact. You wil
therefore, also inquire whether proceedings are to be instituted again^
them and when and where the proceedings will probably take plact
You will also inquire whether it is in contemplation to exhibit any marki
of the displeasure of his (Government by^ military degradation or other
wise.''

Mr. Fish, See. of State, to Mr. Gushing, June 9, 1874. MSS. Inst., Spain ; T^'
Rel., 1874.

<< The exportation of arms and munitions of war of their own maoQ'
facture to foreign countries, is an important part of the commeroe ot
the United States. In time of war their GovlBrnment will expect those
engaged in the business to beware of all the risks legally incident to it*
No such expectation, however, can be indulged in a time of profoQD^

614 .

CHAP. XXL] munitions OF WAB. [§ 391.

peace; and indemnification will be asked of any nation which may
nnnecessarily or illegally obstmct such trade."

Mr. FlBh, See. of State, to Mr. Cramer^ July 28, 1874. MS8. last., Denmark.
See also Mr. FiBh, See. of State, to Mr. Bnasell, Jane 4, 1875. MSS. Inst.,
Venez.

^^A torpedo laanch, in five sections, ready to be set np," though con-
traband of war, may be exported from the United States without breach
of neutrality.

Mr. Evarts, Sec. of State, to Mr. Shermao, Nov. 14, 1879. MSS. Dom. Let.

Soch articles are ^^a legitimate element of commerce to the citizens
of the United States, a neutral power, with either of the belligerents
in time of war in the same manner and to the same extent as they would
be in time of peace, and afford no ground for the interference of the
executive oifieers of the United States."

That neatrals may seU arms to belligerents, see farther Mr. Frelinghnysen,
Sec. of State, to Mr. Dayton, Feb. 19, 1883. MSS. Inst, Netherlands.

Neutrals, in their own country, may sell to belligerents whatever bel-
ligerents choose to buy. The principal exceptions to this rule are, that
neutrals must not sell to one belligerent what they refuse to sell to the
other, and must not furnish soldiers or sailors to either ; nor prepare^
nor Buffer to be prepared within their territory, armed ships or mili-
tuy or naval expeditions against the other.

The Bermuda, 3 WalL, 514.

Neutrals also may convey to belligerent ports not under blockade
whatever belligerents may desire to take, except contraband of war,
^hich is always subject to seizure when being conveyed to a belligerent
^destination, whether the voyage be direct or indirect ; such seizure,
l^oweyer, is restricted to actual contraband, and does not extend to the
Bhip or other cargo, except in cases of fraud or bad faith on the part of
^ owners, or of the master with their scmction.

Ibid.

The landing of a cargo- contraband of war, on the shore erf the country
of one belligerent, at a point not blockaded, is not an act of hostility
Against the other belligerent.

The Florida, 4 Benedict, 452.

Belligerents may come into the territory of a neutral nation, and
^^re purchase and remove any article whatsoever, even instruments of
^ar, unless the right be denied by express statute. If, however, the
object of such an act be to impede the operations of either belligerent
P^^er, and to favor the other, it is a violation of neutrality.

1 Op., 61 Lee, 1796.

615

As to supply of arms to Soath American colonies when in insnrrect
Spain, see 5 J. Q. Adams' Memoirs, 46.

For a criticism of the position of the United States in reference to t
nentrals to famish contraband of war to belligerents, see 3 Phi
(3d ed.)» 250, 408 ; and as criticising Sir B. PhiUimore and point
mistakes in this relation, see Historicns, by Sir W. Harconrt, 1!

If the sale of manitions of war is to be held a breach of c
^< instantly upon the declaration of war between two bellige
only the traffic by sea of all the rest of the neutral powers of
would be exposed to the inconveniences of which they are al
patient, but the whole inland trade of every nation of the eai
f has hitherto been free, would be cast into the fetters. • • •

*?. give to the belligerent the right of interference in every act <

% domestic commerce, till at last the burden would be so enon

<* neutrality itself would become more intolerable than war, and

of this assumed reform, professing to be founded on ^ the pri:
A eternal justice,' would be nothing less than universal and int

U hostilities.'^ (Sir W. Harcourt, Historicus,134.) For,notonli

II* dor of the iron would have to be prevented from selling to tl

of the gun, but the miner and machinist would have to be j
from working for the vendor of the iron. A neutral sovereign,
would have either to stop all machinery by which munitions of
be produced for belligerent use, or expose himself to a call
ever damages his failure so to do might have caused either b<
Under such circumstances it woald be far more economic^ a
to plunge into a war as a belligerent than to keep out of it as
The mere act of furnishing by the subject of a neutral st
ligerent with munitions of war, does not involve such neutra
a breach of neutrality. (1) Between selling arms to a man a
able participation in an illegal act intended to be effected by ti
through the instrumentality of such arms there is no causal C(
The miner or manufacturer, to appeal to an analogous case, m
it not only as possible, but as probable, that his staples, whe
ine: of weapons or of the materials of weapons, may be used

CHAP. XX I. J MUNITIONS OF WAB. [§391.

weapons are manafactured. (3) Nor woald this paralysis be limited to
periods of war. A pmdent Government^ long foreseeing a rnptare, or
preparing in secret to surprise an unprepar^ foe, might take an un-
fair advantage of its adversary, were this permitted^ by purchasing in
advance of the attack all munitions which neutral states might have
in the market; but, on the theory before us, a neutral state could not
permit this without breach of neutrality, since to permit such a sale
would be to give a peculiarly unfair advantage to the purchasing bel-
ligerent. Hence, if such sales are indictable in times of war, they are
ikfwrtiori indictable in times of peace. Why would a foreign nation, it
might well be argued, want in times of peace to buy Armstrong guns.
or ironclads, unless to pounce suddenly down on an unprepared foe T
^0 manitions of war, therefore, could be sold in any country unless to
its own subjects and for its own use ; and countries which cannot pro-
duce the iron or coal necessary for the manufacture of artillery or iron-
clads, would, if no nation can furnish munitions of war to another, have
to do without artillery or iron-clads. (4) To establish a national police
which could prevent the sale of such staples would impose on neutral
states a bui^en, not only intolerable, but incompatible with constitu-
tional traditions. It might be possible in a land-locked province like
Switzerland ; it might even be possible in islands of the size of Great
Britain; but in a country so vast as the United States, and with an
ocean frontier so extended, it would be impossible to establish a police
that conld preclude such exportation without vesting in the National
OoTemment powers and patronage inconsistent with republican institu-
tions, and so enormously expensive as to make it more economical to
interpose in a war as a belligerent than to watch such war as a neutral.
For these and other reasons the United States Government has insisted
on the right of a neutral to send munitions of war to a belligerent : and
this position was taken by President Grant in his proclamation of Au-
gust 22, 1870. The right was stoutly contested, however, by Germany,
^hile it was maintained by both England and the United States. (See
authorities cited in Whart. Grim. Law, 9th ed., § 1903 ; 1 Kent Com.,
142; 6 Webster's Works, 452.) See also notes of this action in begin-
ning of this section.

"It was contended," says Chancellor Kent (1 Com., 142), "on the
part of the French nation in 1796, that neutral Governments were bound
^ restrain their subjects from selling or exporting articles contraband
of war to the belligerent powers. But it was successfully shown, on the
part of the United States, that neutrals may lawfully sell at home to a
l^lligerent purchaser, or carry themselves to the belligerent powers,
^Dtraband articles subject to the right of seizure in transitu. This
'ighthas since been explicitly declared by the judicial authorities of
^ country. (Richardson v. Ins. Co., 6 Mass., 113 ; The Santissima
•l^idad, 7 Wheat, 283.) The right of the neutral to transport, and of
^e hostile power to sei^e, are conflicting rights, and neither party can
charge the other with a criminal act." In a note it is added : ^^ This
passage is cited and approved by Lord Westbury in Ex parte Chavasse
''e Grazebrook, 34 L. J. N. S. By., 17. (See Historicus, Int. Law, 119,
129; Hobbs V. Henning, 17 C. B. N. S. 794 ; The Helen, L. B. 1 Ad. &
Ec, l.)» Mr. Abby (Abby's Kent (ed. 1878), 301) maintains that the
English authorities cited by Chancellor Kent do not sustain his position.

"As an illustration of the difficulties that would arise in this country
^m an extension of neutral liability, may be mentioned the fietct that

511

§ 392.] NEUTRALITY. [CHAP. X]

in 1882-83, maaitions of war, approximating in value to $5,000,000, we
forwarded from San Francisco to China. ^Tbe ammnnition cases h\
the brand U. S. Government, 45 caliber, and all the cases were frc
Springfield, Mass.' ^ During that period 240,000 Springfield rifles, ai
25,000,000 cartridges in all have been forwarded, besides from 500 to 8
bales of cotton duck suitable for tents, by express by each steamer i
China.' (Philadelphia Inquirer, Aug. 8, 1883.) The United States Oo
emment could not, except by measures which would involve not on
enormous expense, but a vast and perilous increase of police force, pi
vent parties from buying up ammunition at public or private sale, ai
sending it to China. Yet, if the non-prevention of such exportatio:
imposed liability for the damage thereby produced, the United Stat
would be obliged to pay for all the injury done to English or Fren<
property by such ammunition in case of a war between China and Fran<
or England."

Wliart. Com. Am. Law, $ 246.

(5) Or to enlist in service of belligerent.

§392.

<* Vessels of either of the parties not armed, or armed previous
their coming into the ports of the United States, which shall not ha^
infringed any of the foregoing terms, may lawfully engage or enU
therein their own subjects or citizens, not being inhabitants (domiciled
of the United States."

Mr. Hamilton's Treasury oircalar of Aug. 4, 1793. 1 Am. St. Pap. (For Bel

140.
That a citizeii/>f the United States enlisted in seryice of a foreign belligere

oannot claim the interposition of his own (}oyemment for ledress for ii^

ries suffered by him in anoh service, see Mr. Fish, Sec. of State, to 1^

Williams, July 29, 1874, quoted iupra, $ 225.

^' A telegram concerning the service of citizens of the United Stat<
as pilots on French vessels of war in Chinese wtkUrs was rec^ved tro
you on the 9th instant in the following words :

" * Chinese object American pUots French yien-of-war. Shall I forbid snch seryiot

"'YOUNG.'

^' To this the following reply was sent March 10 :

" 'Although well disposed, we cannot forbid our citizens seiring under priyate oo
tract at their own risk. Not prohibited by statutes or cognizable by consuls.'

<' The obligation of a neutral Government to prevent its citizens tro
joining in hostile movements against a foreign state is limited by tl
extent to which such citizens are under its jurisdiction, and by the iib
nicipal laws applicable to their actions. Hence, a citizen outside of sw
jurisdiction may not be controlled in his free acts, but what he does
at his own risk and peril. If he offer his service to a combatant, tb
is a matter of private contract, which it may be equally improper /
his own Government to forbid or protect, and such service in legitims
war is not contrary to international law.

618

CHAP. XXL] enlistment IN BELLIGERENT SERVICE. [$ 392.

*< In China, however, foreign powers have an extraterritorial jaris-
dictioD, conferred by treaty. This jurisdiction is in no wise arbitrary,
but is limited by laws, and is not preventive, bat panitory. If a citizen
of the United States in China commit an offense against the peace of
China, it is triable in the consular coorts. Section 4102 of the Bevised
Statutes provides that ' insarrection or rebellion against the Govern-
ment of either of those countries [i. e., the countries named in section
4083, whereof China is one] with intent to subvert the same, and mur-
der, shall be capital offenses, punishable with deatih,' etc., the consular
court and the minister to concar in awarding the penalty. But the
ample act of entering into a private contract to serve either combat-
ant in open warfare would not appear to be triable under this section ;
and, even if it were, this Government would have no rightful power to
forbid such service.

"It is, of course, understood that this reasoning does not apply to
persons in the employ of the Government of the United States. For
BQch persons, while so employed, to perform hostile service for either
party would, be a breach alike of discipline and lieutral good faith
which the rules of the service would be' competent to prevent.

"In the interest of good will between nations, it is desirable that
citizens of the United States should not take part with either belliger-
ent, or, if they do so, that it should be distinctly known that they
thereby act beyond all effective responsibility of their own Govern-
ment Your discretion will doubtless show you how far it may be op-
portune to go in the direction of dissuading any citizen of the United
States from taking sides in the present contest, but whatever you may
do should be marked with the most obvious impartiality."

Mr. Bayaird, Seo. of State, to Mr. Young, Mar. 11, 1885. MSS. last., China;
For. BeL, 1883.

An American citizen may enter either the land or naval service of a
fc^eign Government without compromising the neutrality of his own.

The SantiBsima Trinidad, 1 Brock., 478.

^or is it a crime, under the neutrality law, to leave this country with
^tentto enlist in foreign military service; nor to transport persons out
^the country with their own consent who have an intention of so en-

Ksting.

lo constitute a crime under the statute, such person must be hired
^^ retained to go abroad with the intent to be so enlisted.

U. S. V, Lonia Kashiski, 2 Spragne, 7.

It is, however, a breach of neutrality for one sovereign to recruit sol-
^ers in another's territory.

Infra, $ 395.

Mariners may be said to be citizens of the world ; and it is usual for
^^ of all countries to serve on board of any merchant ship that will

519

§ 393.] NEUTRALITY. [CHAP. XXI

take them into pay, and this practice, from the manner of their liveli
hood, seems, for obvious reasons, founded on convenience and, in man]
instances, on necessity.

1 Op., 61, Lee, 1796.

If foreign sovereigns purchase ships in the United States, and loac
them with provisions for the use of their fleets or armies, those shipi
are to l)e considered as commercially employed ; and if they be not at
taohed to. the naval or military expeditions, as part thereof, in accom
panying the fleet, or closely following the army from place to place, foi
the purpose of furnishing them with supplies, there can be no pretext
for restraining American sailors from hiring on board of them for th<
purpose of gaining a support in their customary way of occupation.

Hid,

A citizen of a neutral nation has a right to render his personal service

as a sailor on board of any vessel whatever employed in mere commerce

though owned by either of the belligerent powers, or the subjects c:

citizens of either, and nothing hostile can be imputed to such conduce

Ihid.

To same general effect see 4 Op., 336; U. S. v. Skinner, 2 Wheel., C. C,
Stonghton v. Taylor, 2 Paine, 655.

(6) Or to sell ob purchasx ships.

§393.

<^ If vessels havA been built in the United States and afterwards
to one of the belligerents and converted into vessels-of-wer, our gs-
zens engaged in that species of manufacture have been equally rea^
to build and sell vessels to the other belligerent. In point of fact h<^^
belligerents have occasionally supplied themselves with vessels-of-^?^
from citizens of the United States. And the very singular case Im
occurred of the same ship-builder having sold two vessels, one to t>^
King of Spain and the other to one of the southern republics, whi^^
vessels afterwards met and encountered each other at sea.

<< During a state of war between two nations the commercial ind c:
try and pursuits of a neutral nation are often materially injured,
the neutral finds some compensation in a new species of industry, whi^
the necessiti es of the belligerents stimulate or bring into activity, it
not be deemed very unreasonable that he should avail himself of tl
compensation, provided he confines himself within the line of entA
impartiality, and violates no rule of public law."

Mr. Clay, Sec. of State, to Mr. Rivas y Salmon, Jane 9, 1827. MSS. Note^ 'F^
Leg.

*' Ship-building is a great branch of American manufactures, in wlii<d
the citizens of the United States may lawfully employ their capital a^^
industry. When built they may ^eek a market for the article in fo^'

* 620

CHAP. XXI.] SALE OP SHIPS. [§ 393.

eigo ports as well as their own. The Grovernment adopts the neces-
sary precaution to prevent any private American vessel from leaving
oar ports equipped ^nd prepared for hostile action, or, if it allow, in
ftoy instance, a partial or imx>erfect armament, it subjects the owner of
the vessel to the performance of the duty of giving bond, with ade-
Quate security, that she shall not be employed to cruise or commit hos-
tilities against a friend of the United States.

^' It may x>ossibly be deemed a violation of strict neutrality to sell to

A belligerent vessels-of-war completely equipped and armed for battle,

f^d yet the Emperor of Bussia could not have entertained that opin*

^oxi, or he would not have sold to Spain during the present war, to

^iiich he was a neutral, a whole fleet of shipsof-war, including some

0^ the line.

**Bat if it be forbidden by the law of neutrality to sell to a bellig-
^^^ent an armed vessel completely equipped and ready for action, it is
I^^Xieved not to be contrary to that law to sell to a belligerent a vessel
^ any other state, although it may be convertible into a ship of war.
^'To require the citizens of a neutral power to abstain from the ex-
exxsiae of their incontestable right to dispose of the property, which
tt^^y must have in an unarmed ship, to a belligerent, would in effect
l^^ to demand that they should cease to have any commerce, or to
®*>^l)loy any navigation in their intercourse with the belligerent. Tt
^ould require more — ^it would be necessary to lay a general embargo,
^^Kxcl to put BMt entire stop to the total commerce of the neutral with all
^^•tions; for, if a ship or any other article of manufacture or com-
n^^rce, applicable to the purpose of war, went to sea at all, it might
^i^^wtly or indirectly find its way into the ports, and subsequently be-
^^^>nie the proi)erty of a belligerent.

^ * The neutral is always seriously affected in the pursuit of his lawful
^^^^^merce by a state of war between other powers. It can hardly be
^^^lected that he should submit to a universal cessation of his trade,
^^^cause by possibility some of the subjects of it may be acquired in a
^^^Colar course of business by a belligerent, and may aid him in his
^^orts against an enemy. If the neutral show no partiality ; if he ia
i^y to seH to one belligerent as the other ; and if he take, himself,
part in the war, he cannot be justly accused of any violation of his
^^utral obligations."

Mr. Clay, Sea of State, to Mr. Taoon, Oot. 31, 1827. MSS. Notes, For. Leg.

^^ The principle, therefore, that the neutral has a perfect right to pur-
^^^M the merchant vessels of the belligerents has been maintained by
'^^gland, by Bussia, and by the United States, and it is inconsistent
^^th these historical facts to say that the contrary doctrine avowed by

;^^^&iioe has had the sanction of the chief maritime nations, or that ^ it

^'^^a a part of the whole doctrine of maritime law."^

Mr. Marcy, Sec. of State, to Mr. Mason, Feb. 19, 1856. MSS. Inst., France.
See also 11 V^ait's St. Pap., 203/.

521

§393.] NEUTRALITY. [CHA*

Mr. Marcy's position, as above stated, is in harmony with the £
mle, but is stoatly contested in France, where it is held, under tl
olations of July 26, 1778, that enemy-bailt vessels cannot be
neutral by a sale to a neutral after hostilities break out. (See 2 i
toye et Duverdy, Prises Maritime, 1, 502.) In Bussia the French
said to be applied. (See Courier des Etats IJnis, Oct. 27, 1855
Lawrence's Wheaton (ed. 1863), 581, 582.) The English rule, life
adopted by Mr. Marcy, requires that the sale should be bona fide.
Sechs Geschwistem r4 Bobin, Adm., 100 ; see 2 Wildman's Int.
90.) As sustaining Mr. Marcy's position, see Mr. Evarts, Secrel
State, to Mr. Ohristiancy, May 8, 1879 ; MSS. Inst., Peru ; Foi
1879. Same to same, December 26, 1879.

In 1883, during the war between France and Ohina, many G
vessels were sold to citizens of the United States, and after the Wi
over were resold to Ohinese. The validity of this transaction do
seem to have been tested by Finance. (See President Arthur's 1
Annual Message, 1884.)

^^ I have received Mr. Young's No. 650, of February 14 last, an
to approve his instruction to Mr. Wingate, consul at Foo-Choi
mating that in view of our friendly relations with both Ohin
France a consular officer should be careful to avoid doing anj
even in an informal manner, that might be regarded as a violal
the strictest neutrality.

<'As illustrating further our position in such cases, I herewith i
for your information a copy of an instruction lately addressed
consul-general at Shanghai touching the sale of vessels ^y Am
citizens in Ghina."

Mr. Bayard, See. of State, to Mr. Smithers, Apr. 20, 1885. MSS. Inst,
For. Bel., 1885.

•

The following is the inclosure above referred to :

<^On the 19th ultimo yon telegraphed to the Department inq
^Can Americans sell steamers to Ghinesef ' You were answered
effect that the inquiry was too vague to admit of intelligent exi
tion.

<< On March 20 yon repeated the inquiry in a modified form
American steamers here be sold to Ghinesef

^^The question is still too obscurely presented to admit of a rej
telegraph covering the different cases which it presents. The
alternative aspects to each fundamental point covered by your in
thus:

*^ (1) Are the steamers in question registered vessels of the I
States plying between our ports and those of Ghina, or are they ft
built vessels in Ghinese waters which have become the propc
citizens of the United States through b<ma fide purchase!

^< (2) Are the owners of the steamers residing within or wiihoi
Jurisdiction of Ghina t

<^(3) Is it proposed to sell them to the Ghinese Gk>vernmenti
individual subjects of Ghina f

522

CHAP. XXI.] SALE OP SHIPS. ^ [§^93.

"(4) Are they to be employed as regularly enrolled vessels-of-war or
as privateers under Chinese commission issued to individuals, or as
<jOTernment tran8x>orts, or as merchant vessels in legitimate trade with
nnblockaded ports, or as blockade-runners t

"Any given combination of these iK)ints would involve a distinct
application of international law thereto.

"Assuming that the owners of the steamers are within Chinese juris-
diction, as the steamers appear to be, judging from your second tele-
gram, the intervention of the consular of^cers of the United States
would be required, in case of sale to aliens, to cancel the papers under
which the steamers now bear our flag. If they are regularly registered
vessels, the registry is to be destroyed and one-half of it sent to this De-
partment. If they are foreign built and owned by American citizens,
the certified bill of sale allowed under paragraph 340 of the Consular
fiegnlations of 1881 should be canceled by the consul ; and if th^ new
tiunsfer should take place at another consulate than that at which the
<>iiginal purchase of the vessel was recorded, official correspondence
l^ween the two consulates would be needed to effect such cancellatiop.
*^It would, however, be manifestly improper for any official of the
Suited States to take part in the transfer of a steamer, or of any prop-
^^y whatever, for a warlike purpose, to a belligerent towards whom
the United States maintained a position of neutrality.

^' If, however, the proposed transaction should be clearly and posi-
tively determined to be wholly pacific, and not intended in any way
directly or indirectly to favor the employment of the vessel for or in aid
ot any hostile purpose, the intervention of the consul to cancel the ex-
iting documents of the vessel would not violate any international obli-
gation on the part of this GK>vemment. The utmost discretion and the
*i^06t evident and positive proof of the legitimacy 6t the transfer would,
however, be necessary, and in case of doubt, however remote, it would
^ the consul's duty to decline to intervene in the transaction.

^ Tour inquiry is susceptible of still another aspect, for you may have
<lQ8iied to know whether you were under any obligation to prevent the
^^^ansfer of American-owned steamers to the flag of China, whether
^th padflo or with hostile intent. In any case where the ultimate ob-
ject of the transfer is or may appear to be hostile, and where consular
^Intervention is necessary to effect a valid transfer, the withholdment of
^€h intervention would be the limit to which a consul could go to pre-
^^Bt such unlawful change of ownership. But if the legalization of the
^ie should be unnecessary, there would be no international obligation on
^be consul to prevent the seller from alienating his property, nor would
^^y preventive means appear to be within the consul's reach, in such a
banner as to impute responsibility to him for failure to employ them,
'^e consul would have no more control, and consequently no more re-
sponsibility, in the case of transfer of the American vendor's property
^7 private contract and simple delivery within Chinese jurisdiction,

52^

§ 393.] NEUTBALITY. [CHAP. X3

than in the case of a pnvate contract on the part of the same vend
to lend his personal aid to either belligerent. In either case, the pai
alienating his property or his services does so at his own risk and pei
<' This instruction, although covering only a part of the hypothetic
field embraced in your inquiries, may serve to guide you in whatei?
specific case may be presented ; but if you should be in doubt on ai
point involved, precise instructions will be given to you thereon.'^

Mr. Bayard, Seo. of State, to Mr. Stahel, Apr. 14, 1885. MSS. Inat., Consa]
For. Rel., 1885.

These vessels had been previously sold to citizens of the XJnitx
States by Chinese.

See President Arthur's annaal message of 1884, qaoted in f raj $ 410.

It is not a violation of the neutrality laws of the United States to s<
to a foreigner a vessel built in this country, though suited to be a pi
vateer, and having some equipments calculated for war but frequent
used by merchant F^iips.

Moodie v. The Ship Alfred, 3 Dall., 307.

Sending armed vessels and munitions of war to the ports of a belL
erent for sale as articles of commerce is not prohibited by the law
nations or by the laws of the United States, though it may render t
property liable to confiscation.

The Santissima Trinidad, 7 Wheat., 283.

While the sale of a vessel armed or unarmed to a belligerent is □
forbidden by international law, such a vessel, even on its way to t
vendee, is liable to be seized as contraband on the high seas by the c
posing belligerent.

story, J., Santissima Trinidad, 7 Wheat., 340 ; The Bermnda, 3 Wall., 514 ; 1
Florida, 4 Ben., 452; see Crawford v. Wm. Penn, Pet. C. C, 106 ; U. S. v. 0
Etta, 13 Am. Law. Reg., 38 ,- The Lilla, 2 Spragne, 177 ; 2 Cliff., 169 ; Daxi
Wheaton, note 215.

The case of the sale of the Meteor is examined infrat i 396. See, on this po
5 Am. Law Bev., 263.

A bona fide purchase for a commercial purpose by a neutral, in ^
own home port, of a ship-of-war of a belligerent that had fled to sc
port in order to escape from enemy vessels in pursuit, but which ^
bona fi4e dismantled prior to the sale, and afterward fitted up for 1
merchant service, does not pass a title above the right of capture by l
other belligerent.

The Georgia, 7 Wall., 32.

A sale in a neutral port of a war ship by a belligerent to a neutral
invalid.

The Georgia, 1 Lowell, 98.

It is not a violation^ of the neutrality laws of the United States for
merchant or ship owner to sell his vessel and cargo (should the latti

524

CHAP. XXL] sale of SHIPS. [§393.

«Ten consist of warlike stores) to a citizen or inhabitant of Buenos
Ayres (then an insnrgent belligerent). Nor will it make any difference
whether snch sale be made directly in a port of the United States, with
immediate transfer and possession thereQx>ony or under a contract en-
tered into here, with delivery to take place in a port of South America.

1 Op., 190, Bash, 1816.

There is nothing in the law of nations which requires that a ship, in
order that she may enjoy all the benefits of nationality^ should have
been constructed in a particular country, or which negatives the gen-
eral right of a nation to purchase and naturalize the ships of another
nation.

6 Op., 638, Cnflhing, 1854.

Each nation, however, has the right to prescribe convenient rules on
this snbject.

^0 Government has the right to contest the validity of the sale of a
«hip on the pretense of its having been, at one time, belligerent prop-
erty, i.e., the property of its enemy.

* im.

The only question that can be investigated in the case of a neutral
«hip purchased from a belligerent is the bona fides of the transaction.
T^e Btate of war interrupts no contract of purchase and sale, or of trans-
portation, as between neutral and belligerent, except in articles contra-
band of war. The registry of a ship is not a document required by the
'^^ of nations, as expressive of the ship's national character.

Ibid. See infra, $$ 408,/.

A citizen of the United States may purchase a ship of a belligerent

t^^er, at home or abroad, in a belligerent port, or on the high seas,

P^vided the purchase be made bona fidCj an(^ the property be passed

^^^lutely and without reserve; and the ship so purchased becomes en-

^Wed to bear the flag and receive the protection of the United States.

Centrals have a right to purchase ships of belligerents.

7 Op., 538, Cashing, 1855. See infra, $ 399.

The distinction between fitting out and arming ships-of-war for the

r^^ce of a belligerent, which is not permissible, and selling to such

^lligerent ships to be converted into men-of-war and munitions of war,

^liic^ is permissible, may be thus explained : It is not indictable for a

K^naith to sell a pistol to a party who may use it unlawfully, even

^Qough the vendor may have reasons to suspect the object of the pur-

^^^. It would, however, be unlawful for the gunsmith to join in ar-

^Dging a machine by which a specific unlawful purpose is to be achieved.

'^'t is not unlawful, in other words, to be concerned in preparations which

^iUnot, unless diverted by an independent force, produce a violation

^f law. It is, however, unlawful to be concerned in putting in actual

operation dangerous machines. He who is concerned in fitting out and

525

$ 394] NEUTRALITY. [CHAP. XXI

arming a man-of-war for the porpose of preying on ttie commeice of :
fiiendly state, or of attacking its armed ships or ports, is as mnch eon
cerned in the attack as he who takes part in mannfiu^tnring and plant
ing a torpedo in a freqaented channel is responsible for the mischie
done by the torpedo. This distinction has been already asserted in thi
cases which mle that it is an indictable offense to be concerned in conn
seling and aiding a specific attack, bnt not an indictable oflfense to \m
concerned in selling arms by which snch attack is to be made.

See The Grmn Para, 7 Wheat., 471.

(7) Ob may GIVS ASTI.U1C TO BEXXKHERXST 8HIF8 OR TBOOPS^

§394.

The tact that by treaty with France we were bonnd to receive be
public armed vessels in oar ports was held, in 1793, no reason why is
should not extend a similar asylnm to Great Britain, with whom im
had no snch treaty.

Mr. Jeffenon, 8eo. of Siato, to Mr. Hammond, Sept. 9, 1793. M8S. Notes, Fv
Leg. 1 Am. St. Pap. (For. BeL), 176; 1 Wait's St. Pap., 170. See as
French and British treaties, 9upra, §§ 148/., 150/.

The correspondence as to "la Petite Democrate, heretofore la Petite Sarah,'*'
adopt Genet's description, is giren in 1 Am. St. Pap. (For. BeL), 163/.

«<The doctrine as to the admission of prizes maintained by the Gca
emment from the commencement of the war between England, Fran.^
etc, to this day has been this: The treaties give a right to ami^
vessels, mth ikeir prizesy to go where they please (consequently
onr ports), and that those prises shall not be detained, seized, nor
dicated, bnt that the armed vessel may depart as speedUy as mojf *
with her prize, to the place of her' commission, and that we are noC:^
suffer their enemies to sell in our ports the prizes taken by their
vateers. Before the British treaty no stipulation stood in the
permitting France to sell her prizes here, and we did permit it, bnt <
pressly as a &vor, not as a right. • • • These stipulations a&:ii
the prizes to put into our i>orts in cases of necessity, or perhaps of ^^
venience, but no right to remain if disagreeable to us, and absolutely o
to be sold."

Mr. JeiTerson, President, to Mr. Gallatin, Aug. 28, 1801. 1 Gallatin's Writ^ J>l
42. See further as to this treaty, wpra^ § 148.

Misconduct by belligerent craisers in neutral waters will justify" th
sovereign of such waters in requiring the departure of such cramJKr
from such waters. This ground was taken by President Jeffi^s^'
ITovember 19, 1807, when onlering the departure of the British s^^^ad
ron from the waters of the United States.

See mtpra^ $$ 315&, 319, 331. This proclamation is given in 3 Am. St. Pap- C^^'
BeL), 23.

After the South American insurgents were recognized as heOigerents
in 1816, their public vessels were received in the ports of the United

626

CHAP. XXI.] ASYLUM TO BELLIGEEENT. [§394

States on the same basis as those of Spain. Sympathy with the insur-
gents idso, if not desire for plnnder, led to the fitting oat in Baltimore
of nameroos privateers to prey on Spanish commerce under insurgent
flags. This led to the act of 1816, imposing fine, imprisonment, and
forfeiture in such cases.

<<The Government of the United States has been sincerely disposed

to perform toward both belligerents all the of^ces of hospitality enjoined

by hamanity and the public law and consistent with their friepdship

to both; but it can i>ermit neither, under allegations of distress,

^bether feigned or real, to perform acts incompatible with a strict and

i'xi partial neutrality." .

Sir. Clay, Seo. of State, to Mr. Obregon, May 1, 18^. M8S. Notes, For. Leg,

fihe following correspondence is here inserted at large in consequence
the elaborate exposition it gives of the right of asylum :

*^The department of the colonies has just communicated to me the in-
^c>xmation, transmitted by the governor of Gura^oa, concerning the
^^flBur of the ship Sumter, and I hasten to bring to your notice the fol-
^^^'ving observations, by way of sequence to the preliminary reply which
I^ laad the honor to address to you on the 2d of this month. According
^^o the principles of the law of nations, all nations without exception
ix^sy admit vessels-of-war belonging to a belligerent state to thoir'ports,
^^d accord to them all the favors which constitute an asylum. Gondi-
^ons are imposed on said vessels during their stay in the port or road-
^t^ead. For example, they must keep p^ect peace with all vessels that
inay be there ; they may not augment their crews, nor the number of
their guns, nor be on^the lookout in the ports or roadsteads for the pur-
pose of watching after hostile vessels arriving or departing, etc. Be-
^des, every state has the right to interdict fbreign vesselsof-war from
entrance to ports which are purely military. Thus it was that Sweden
^pd Denmark, in 1854, at the time of the Crimean war, reserved the
fight to exclude vessels-of-war from such or such ports of their domin-
ions.

^^The neutral power has also the right to act like France, who, by
I^er declaration of neutrality in the war between the United States ancl
the Confederate States, under date of 9th June last (Moniteur of 11th
Jnne), does not permit any vessel-of-war, or privateer, of one or tlio
otter of the belligerents, to enter and remain with their prizes in French
ports longer than twenty-four hours, unless in case of refuge und<'r
stress.

'*In the proclamation of the month of June last, which was commuui-
oated to you with my dispatch of the 13th, the Government of the Netb-
^i^ds has not excluded vessels-of-war from her ports.

^^As to privateers, the greatest number of the maritime nations allows
'Oxetn the privilege of asylum upon the same conditions nearly as to
Vessels-of-war.

* ^^According to a highly esteemed author on the law of nations (Haute-
*enilie, Droits et Devoirs des Nations Neutres, i, 139), privateers may
^laim entrance into the ports of nations which have consented to accord
^ylom to them, not only in cases of pressing danger, but even in cases
yi which they may deem it advantageous, or even only agreeable^ and
*0T obtaining re^t or articles of secondary necessity, such as the refresh-
ments they may have* need of.

621

§ 394] NEUTBALITY. [CHAP.

<<The terms of the proclamation of the Netherlands GoTemi
which admits privateers into Netherlands ports only in oases of dist
harmonize with this doctrine.

<^ Moreover, according to the information received from the gov^
of Gnra^oa, the Snmter was actually in distress, and that fancti<
coald not, therefore, refuse to allow the said vessel to enter the p<

<< Strong in its amicable intentions, the King's Government doe
believe itself bound to confine itself to the defense of the conduct c
of its agents in the particular case under discussion. It is not ign<
that it can or may hereafter be a contested question in such cases
the reality of the distress in which such vessel or other would be
ihat thus the subject of the admission generally of the Coufed
States vessels would rest untouched. I, therefore, sir, think it o
tune to look into the question to determine whether the Sumter si
have been admitted to Gura^oa outside of the condition of well-asi
distress.

<< It is evident that the reply to be made is dependent on an
question — ^that is to say, was this vessel a man-of-war or a private

'< In the latter case, the Netherlands Gk)vemment could not, e:
in case of a putting in compelled by distress {reldche foroie) eidmi
Sumter into the ports of its territories.

<< It is not sufficient to dispose of the difficulty by the declaratioi
the Sumter is, as is stated in your dispatches, ^ a vessel fitted oo
and actually engaged in, piratical expeditions,' or ^ a privateer stea
Such an assertion should be clearly proved, in accordance with the
of law, ^affirmanti irieumbit probatio.^

'^After having poised, with all the attention which comports wit
weightiness of the matter, the facts and circumstances which cb
terize the dissensions which now are laying desoljite the United SI
and of which no Government more desires the prompt termination
does that of the Netherlands, I think I may express the convictioo
the Sumter is not a privateer, but a man-of-war — grounding mysei
the following considerations :

'' In the first place, the declaration of the commander of the v
given in writing to the governor of Cura^oa, who had made known
he would not allow a privateer to come into the port, and had thei
manded explanations as to the character of the vessel. This dedan
purported < the Sumter is a ship-of-war duly commissioned by tbe(
ernmeut of the Confederate States.'

^'The Netherlands governor had to be contented with the word oi
commander couched in writing. Mr. Ortolan (Diplomatic de la '.
i, 217), in speaking of the evidence of nationality of vesselsof-
thus expresses himself:

<< <The flag and the pennant are visible indications, but we are
bound to give faith to them until they are sustained by a cannons

^' The attestation of the commander may be exigible, but other pi
must be presumed : and, whether on the high seas or elsewhere
foreign power has tne right to obtain the exhibition of them.

''Therefore the colonial council has unanimously concluded that
word of the commanding officer was sufficient.

" In the second place, the vessel armed for war by private perwf
called < privateer.' The character of such vessel is settled predi
and, like her English name (privateer), indicates sufficiently under
circumstance that she is a private armed vessel — name which
Wheaton gives them. (Elements of International Law, ii, 19.)

628

* *CflAP. XXI.] ASYLUM TO BELLIGERENT. [§ 394.

^^ Privateering is the maritime warfare which privateers are authorized
to make, for their own account, against merchant vessels of the enemy
by virtae of letters of marque which are issued to them by the state.

**The Sumter is not a private vessel ; is not the private property of
unconnected individuals — of private shipowners. She, therefore, can-
not be a privateer ; she can only be a ship-of- war or ship of the state
armed for cruising. Thus the Sumter is designated, in the extract an-
nexed from Harpers Weekly, under the name of * rebel ship-of- war.'

** Thirdly. It cannot be held, as you propose in your dispatch of the
9tli of this month, that all vessels carrying the Confederate flag are,
without distinction, to be considered as privateers, because the prin-
ciples of the law of nations, as well as the examples of history, require
that the rights of war be accorded to those States.

^^ The Government of the United States holds that it should consider
tfae States of the South as rebels.

'^ It does not pertain to the King's Government to pronounce upon
the subject of a question which is entirely within the domain of the
internal regulation of the United States j neither has it to inquire
whether, in virtue of the Constitution which rules that Eepublic, the
States of the South can separate from the central Government, and
whether they ought, then, aye or no, to be reputed as rebels during the
first period of the difficulties.

**Bat I deem it my duty to observe to you, sir, that, according to the

doctrines of the best publicists, such as Vattel (iii, c. IS, § 292), and Mr.

-de Bayneval (Droit de la Nation et des Gens, i, 161), there is a notable

difference between rebellion and civil war. * When,' says Vattel, *a

pajty is formed in the state which no longer obeys its sovereign and

iB strong enough to make head against him, or, in a Republic, when the

Bation divides into two opposing parties and on one side and the other

take up arms, then it is civil war.' It is, therefore, the latter which

iiow agitates the great American Eepublic. -

'^Bat, in this case, the rights of war must be accorded to the two
parties.

'^Letmebe allowed to cite here only two passages; the oue from
Vattel (ii^ c. 4, § 66), which reads: 'Whenever affairs reach to civil
^ar the ties of political association are broken, or at least suspended,
^tween the sovereign and his people. They may be considered as two
^tinct powers } and, since one and the other are independent of any
foreign authority, no one has the right to judge between them. Each
o^hem may be right. It follows, then, that the two parties may act as
laying equal right.' The other passage is taken from the work of a
former minister, himself belonging to the United States, Mr. Wheaton,
^ho (in his Elements of International Law, c. i, 35, Am. ed., part
^) P' 32), thus expresses himself: ^ If the foreign state would observe
^l^late neutrality in the face of dissensions which disturb another
^tate, it must accord to both belligerent parties all the rights which
^ar accords to public enemies, such as the rigUt of blockade and the
^ght of intercepting merchandise contraband of war.'
. ^' As for historic evidence, it will suffice to call to mind from ancient
^iQiesthe struggle of the United Provinces with Spain, and from modern
^^te the war between the Hispano- American colonies and the mother
^untry since 1810, the war of independence of Greece from Turkev
^mce 1821, etc.

^4t will doubtless be useless to recollect, on this occasion, that the
•Principle to see only insurgents in the States of the South, having

a. Mis. 1G2— VOL. Ill 34 62»

§ 394.] NEUTBALITY. [CHAP. XXI.

neither sovereigaty nor rights of war, nor of peace, was put forward
by England, at the breaking oat of the war of independence of th&
Anglo-American colonies, in the vindicatory memoir pablished by th&
British Goart in 1778 in answer to the exposition of the motives for
the condnct of France, which had lately signed, on the 6th day of
February of that year, a treaty with the United States, in which they^
were regarded as an independent nation.

<' But the Court of Versailles set out from other principles, which^
she developed in < Observations on the Vindicatory Memoir of the Gonrt;
of London,' saying, among other things: ' It is sufficient to the justifi-
cation of His Majesty that the colonies had established their independ-
ence not merely by a solemn declaration, but also in fact, and had
maintained it against the efforts of the mother country.'

'' Existing circumstances seem to present the same characteristics ;
and if it is desired to treat the States of the South as rebels, and accuse
them of felony there might here be cited as applicable to the actual
conduct of the United States towards the Confederates the following
remark of the Court of Versailles : < In advancing this proposition ^that
the possession of independence, of which the French Cabinet saia the
Americans were in the enjoyment in 1778, was a veritable felony), the
English minister had, without doubt, forgotten the course he had him-
self taken towards the Americans from the publication of the Declara-
tion of Independence. It is remembered that the creatures of the court
constantly called upon the rebellion vengeance and destruction. How-
ever, notwithstanding all their clamors, the English minister abstained,
after the Declaration of Independence, from prosecuting the Americans
as rebels ; he observed, and still observes towards them, the rules of
war usual among independent nations. American prisoners have been
exchanged through cartels,' etc.

^^ The rights of war cannot, then, in the opinion of the King's Govern-
ment, be refused to the Confederate States ; but I hasten to add that
the recognition of these rights does not import in favor of such States
recognition of their sovereignty.

^' ' Foreign nations,' says Mr. Martens (Precis du Droit des Gtens, I.
viii, c. 3, § 264), ^ cannot refuse to consider as lawful enemies those
who are empowered by their actual Government, whatever that may be.
This is not recognition of its legitimacy?

^< This last recognition can only spring from express and official de-
claration, which no one of the Cabinets of Europe has thus far made.

^' Finally, and in the last place, I permit myself here to cite the ex-
ample of the American privateer Paul Jones.

'' This vessel, considered as a pirate by England, had captured two of
Eis Britannic Majesty's ships in October, 1779. She took them into the
Texel, and remained there more than two months, notwithstanding the
representations of Mr. York, ambassador of Great Britain at The Hagae,
who considered the asylum accorded to such privateer (pirate as he
called it in his memoii: to the States General of 21st March, 1780) as
directly contrary to treaties, and even to the ordinances of the Gov-
ernment of the Eepublic.

^^Mr. York demanded that the English vessels should be released.

^'The States General refused the restitution of the prizes.

<^ The United States, whose belligerent rights were not recogniJEedby
England, enjoyed at tiiat period the same treatment in the ports of the
Eepublic of the United Provinces as the Netherlands authorities have
now accorded to the Confederate States.

630

CHAP. XXI.] ASYLUM TO BELLIGERENT. [§ 394.

^^If the Cabinet of The Hague cannot, therefore, by force of the pre-
cediDg, class all vessels of the Confederate States armed for war in the
category of privateers, much less can it treat them aspirates (as yon
call them in your dispatch of the 12th of this month), or consider the
Samter as engaged in a filibustering expedition — ' engaged in a pirat-
ical expedition against the commerce of the United States' — as it reads
in your communication of the 2d of September.

"Here again historic antecedents militate in favor of the opinion of
the Netherlands Government.

^^ Is there need, in fact, to remind you that at the outset of the War of
'American Independence, in 1778, the English refused to recognize Amer-
ican privateers as lawful enemies, under the pretense that the letters of
marqne which they bore did not emanate from a sovereign, but from
revolted subjects f

"But Great Britain soon had to desist from this pretension, and to
accord international treatment to the colonists in arms against the
mother country.

^*The frankness with which the King's Government has expressed its
conTJctions in relation to the course to be taken towards the States of
the South will, without doubt, be estimated at its just value by the
Government of the United States.

"It will i[)ercelve therein the well-settled intention to preserve in
safety the rights of neutrality ; to lay down for itself and to follow a line
ofconduct equally distant from feebleness as from too great adventurous-
nesSf bat suitable for maintaining intact the dignity of the state.

"The Government of the Netherlands desires to observe, on the oc-
casion of existing affairs in America, a perfect and absolute neutrality,
and to abstain therefore from the slightest act of partiality.

"According to Hubner (Saisie de B&timents Neutres), < neutrality
consists in absolute inaction relative to war, and in exact and perfect
impartiality manifested by facts in regard to the belligerents, as far as
this impartiality has relation to the war, and to the direct and imme-
<liate measures tor its prosecution.'

"^Neatrality,' says Azuni (Droits Maritimes), Ms the continuation in
estate of peace of a power which, when war is kindled between two or
i&ore nations, absolutely abstains from taking any part in the contest.'

"Bat if the proposition be admitted that all the vessels of the Con-
f<fiderate States armed for war should be considered jprtma/oote as pri-
vateers, would there not be a flagrant inequality between the treatment
^d the favors accorded to vessels-of-war of the United States and the
^^Is of the Confederate States, which have not for the moment a
^^ properly so called t

"This, evidently, would be giving proof of partiality incompatible
^th real duties of neutrality. The only question is to determine with
^xactitade the distinctive characteristics between a privateer and a
ship-ofwar, although this may be difficult of execution. Thus is ig-
nored that which Count Reventlon, envoy of the King of Denmark at
^^^d, drew attention to in 1782, that there exists among the maritime
Wwers regulations or conventions between sovereigns, which oblige
^a<5m to equip their vessels in a certain manner, that they may be held
^^ritably armed for war.

''Ton express also, in your dispatch of September 2, the hope that
yooNetherlands Government will do justice to your reclamation, ground-
^K yourself on the tenor of treaties existing between the Netherlands
^d the United States, on the principles of the law of nations, and.

§ 394.] NEUTBALITT. [CHAP.

finally, upon tbe assurances you have received from the King's Govern
ment.

^'Amidst all the European powers there are few who have better d^
fended the rights of neutrals, and have sufifered more in this noble cau«
than Denmark ; and one of her greatest statesmen of the close of tb
last century, Count Bemstorff, has been able to declare with justice, i]
his memoir of July 28, 1793, a document that will long continue to 1>
celebrated: 'A neutral power fulfills all its duties by never departiii|
from the most strict impartiality, nor from the avowed meaning of iu
treaties.'

" I have endeavored, sir, to show, in what precedes, that the Govern-
ment of the Netherlands has fulfilled conscientiously its first duty and
will adhere faithfully thereto.

<< The Cabinet of The Hague does not observe and will not observe less
religiously the tenor of treaties.

<^ The treaty of the 19th of January, 1839, and the additional coDvea-
tion of the 2Gth of August, 1852, only relate to commerce and naviga-
tioD ; the only treaties that can be invoked in the present case are those
of the 8th of October, 1782.

<< I do not think it my duty to enter here upon a discussion of princi-
ples on the question of deciding whether these treaties can still be con-
sidered as actually in force, and I will not take advantage of the cir-
cumstance that the Cabinet of Washington has implicitly recognized, by
the very reclamation which is the object of your dispatches, that the
treaties of 1782 cannot any longer be invoked as the basis of interna-
tional relations between the Netherlands and the United States.

'< I will only take the liberty of observing to you, sir, that the execu-
tion of the stipulations included in those diplomatic acts would be far,
in the present circumstances, from being favorable to the Gt)verDment
of the Republic.

<< In fact we should, in this case, admit to our ports privateers with
their prizes, which could even be sold there by virtue of article 6 of the
before-cited convention of 1782 on rescues.

" It would, perhaps, be objected that the treaty of 1782, having been
concluded with the United States of America, could not be invoked bj
a part of the Union which had seceded from the central Government,
and I do not dissent from the opinion that this thorny question of pah-
lie law would give rise, should the case occur, to very serious difficul-
ties.

" But we cannot lose sight of the fact that the treaty spoken of ^as
concluded, even before the recognition of the United States by Englan^^
in 1783, with the oldest members of the Republic, among others, to
wit, with Virginia, North Carolina, South Carolina, and Georgia, and
that those States actually figure among the secessionists.

*' In 1782 the Eepnblic of North America was only a simple confedera
tion of States, remaining sovereign, united only for common defeiu^
(Staatenbund), and it is only since the establishment of the Constitu-
tion of the 17th of September, 1787, that the pact which binds together
the United States received the character which is attributed to it by
Mr. Wheaton, also (Elements of International Law), of a perfect union
between all the members as one people under one Government, federsu
and supreme (Bundestaat), * a commonwealth,' according to Mr. Mot
ley in his pamphlet. Causes of the Civil War in America, p. 71.

" In view of this fundamental difference between the present charac
ter of the Government of the United States and that of the party con.

532

, XXI.] ASYLUM TO BELLIGERENT. [§ 394.

Dgthe treaty of 1782, it woald be difficult to refuse in equity the
ege of the secessionist States to avail themselves of it.
) will, therefore, not escape your penetration that it is preferable,
11 for the Netherlands as for the Cabinet of Washington, to leave
eaty above mentioned at rest, and that, in excluding privateers
its ports the Government of the Netherlands has acted only in the
ists of the Government of the United States, to which it is bound
clings of a friendship which dates even from the time of the exist-
)f the Republic of thcf United Pfbvinces, and which the King's
rnment will make every efforfc to maintain and consolidate more
lore.

ccording to the law of nations, the cases in which the neutrality of
er is more advantageous to one party than to the other do not affect
pair it ; it suffices that the neutrality be perfect and strictly ob-
d. The Government of the Netherlands has not departed from it,
fore, in denying admission to the ports of His Majesty's territories
vateers, although at first glance this determination is unfavorable
) Southern States.

he difficulties which have actually arisen, and which may be re-
1 hereafter, the desire to avoid as much as possible everything that
compromise the good understanding between the Governments
) United States and the Netherlands, impose on the last the obli-
1 to examine with scrupulous attention if the maintenance of the
al principles which I have had the honor to develop might not in
particular cases impair the attitude of neutrality which the Cabi-
' The Hague desires to observe. If, for example, we had room to
e that the Sumter, or any other vessel of one of the two bellig-
parties, sought to make of Gura^oa, or any other port in His ^
ity's dominions, the base of operations against the commerce of *
Iverse party, the Government of the Netherlands would be the
0 perceive that such acts would be a real infraction, not merely
neutrality we wish to observe, but also of the right of sovereignty
he territorial seas of the state ; the duty of a neutral state being
;e care that vessels of the belligerent parties commit no acts of
ity within the limits of its territory, and do not keep watch in
orts of its dominion to course from them after vessels of the ad-
party.

istructions on this point will be addressed to the governors of the
irlands colonial possessions.

flatter myself that the preceding explanations will suffice to con-
the Federal Government of the unchangeable desire of that of
etherlands to maintain a strict neutrality, and will cause the dis-
irance of the slightest trace of misunderstanding between the
lets of The Hague and of Washington."

3aroa von Zaylen to Mr. Pike, Minister Resident of the United States at The
Hagne, Sept. 17, 1861. Dip. Corr., 1861.

7 some accident our foreign mail missed the steamer. It is only
ow that I have received your dispatch of September 4 (No. 15),
roceeding at Gura9oa in regard to the Sumter was so extraordi-
and so entirely contrary to what this Government had expected
that of Holland, that I lose no time in instructing yon to urge the
ieration of the subject with as much earnestness as possible. I
t believe^ that that Government will hesitate to disavow the con-

533

§ 394.] NEUTRALITY. [CHAP. XZ

duct of the authorities if they have been correctly reported to this I
partment."

Mr. Seward, Sec. of State, to Mr. Pike, Sept. 28, 1361. MSS. lust., Netherlan
Dip. Corr., 1861.

"I am jast now informed by a dispatch from Henry Sawyer, esq., c
consul at Paramaribo, that on the 19th day of August last the pirati(
steamer Sumter entered that port, and was allowed by the autborit
there to approach the town, and to purchase and to receive coals,
stay during her pleasure, and to retire unmolested, all of which w
done in opposition to the remonstrances of the consul.

^'You will lose no time in soliciting the attention of His Msyestj
Government to this violation of the rights of the United States. The
will be well aware that it is the second instance of the same kind ths
has occurred in regard to the same vessel in Dutch colonies in the Wei
Indies.

<^It is some relief of the sense of injury which we feel that we d
not certainly know that the authorities who have permitted the»
wrongs had received instructions from their home Grovernment in re
gard to the rights of the United States in the present emergency. W<
therefore hope for satisfactory explanations. But, in any case, you wil
inform that Government that the United States will expect them t
visit those authorities with a censure so unreserved as will preveo
the repetition of such injuries hereafter. An early resolution of th<
subject is imperatively necessary, in order that this Government maj
determine what is required for the protection of its national rights ii
the Dutch American ports."

Same to same, Oct. 4, 1861 ; ibid,

** Since my last (under date of October 2) I have received a lettei
from the United States consul at Paramaribo, of which the followiDg is
a copy :

** 'United States Coxsuulte,
" *Port of ParamaribOf September 4, 1861.
• "'Sir : I have the honor (but with chagrin) to inform you that the rebel stcaotf
Sumter arrived at this port on the 19th of August, and left on the Slst, having 1><^b
allowed to coal and refit. I used my best endeavors to prevent it wlthoat avail.
" * I am, &o.,

"•HexrySaWYB"'

" Immediately on the receipt of it I addressed the following note to
the minister of foreign affairs :

" < The Haoue, October 8, 18C1.

*'*SiR: I have just received a communication from the Amori^'^
consul at Paramaribo under date of the 4th September last, which 1 1<>^
no time in laying before your excellency.

"*The consul states'" — [see above].

" *The reappearance of tne Sumter in a' port of the Ketherlands, ai^^
60 brief an interval, seems to disclose a deliberate purpose on the p^
of the persons engaged in rebellion against the United States Govern*

534

€HAP. XXI.] ASYLUM TO BELLIGERENT. [^ 394.

ment to practice npon the presamed indifference, the expected favor, or
the faDcied weakness of the Datch Government.

•**Duriug a period of forty-six days, during wlxicli we have heard of
this piratical vessel in the West Indies, it woald appear that she bad
been twice entertained and supplied at Dutch ports, and spent eighteen
days GDder their shelter.

^^^This can be no accidental circumstance.

*'4ii themnltitude of harbors with which the West India seas abound,
the Sumter has had no occasion to confine her visits so entirely to the
ports of one nation, especially one so scantily supplied with them as Hol-
land. And the fact that she does so is, in my judgment, not fairly sus-
ceptible of any other interpretation than the one I have given.

'^^I feel convinced that the Government of the Netherlands will see
in this repeated visit of the Sumter (this time, it appears, without any
pretext] a distinct violation of its neutrality according to its own views,
as laid down in your excellency's communication to me of the 17th of
September last, and a case which will call for the energetic assertion of
its purpose expressed in the paper referred to, namely, not to allow its
ports to be made the base of hostile operations against the United
States. For that the Sumter is clearly making such use of the Dutch
potts would seem to admit of no controversy.

^**In view of the existing state of the correspondence between the
United States and the Netherlands on the general subject to which this
case belongs, and of the questions and relations involved therein, I
shall be excused for the brevity of this communication npon a topic of
so moch importance and so provocative of comment:

^^'The undersigned avails himself,' etc.

'4 called to-day upon Baron Yon Zuylen, but he was absent, and I
^1 not therefore be able to see him again before the close of the mail
^hich takes this. And I do not know that an interview would in any
^ay affect the existing state of things or give me any new information.
'Riis Government's intentions are good; and it desires to avoid all dif-
ficnlty with the United States, and with everybody else.

"As I stated in my dispatch of the 25th September, I have confidence
that orders have been given that will impede the operations of these
vessels in Dutch ports hereafter, and probably drive them elsewhere."

Mr. Pike to Mr. Seward, Oct. 9, 1861 ; ibid.

''The delay of the Government of the Netherlands in disposing of
the unpleasant questions which have arisen concerning the American
pirates in the colonies of that country is a subject of deep concern;
^nd you are instructed, if you find it necessary, to use such urgency
^may beefEectnal to obtain the definitive decision of that Government
^kereon so early that it may be considered by the President before the
Meeting of Congress in December next."

Mr. Seward, Sec. of State, to Mr. Pike, Oct. 10, 1861 ; iHd.

"After reflection, upon the reappearance of the Sumter, and her pro-
longed stay in the port of Paramaribo (this time apparently without
pretext of any kind), I have felt, in view of the position taken by the
*^atch Government in their communication to me of the 17th of Sep-
tember, that we were entitled to be specially informed of the precise
^terpretation which this Government puts upon their general declant'
^lonin the communication referred to, nnmoly that it will not permit

535

§ 394.J NEUTRALITY. [CHAP.

its ports to be made the base of hostile operations against the Unite
States commerce.

*^ I have accordingly made the direct inquiry of Baron Van Zaylei
without waiting to hear what yon have to say in response to that con
munication. In reply to my inquiry, Baron Van Zuylen has informe
me that, previous to his receiving information of the appearance of th
Sumter at Earamaribd, orders were issued by the department of th
colonies, instructing the colonial authorities not to permit the repetitio
of the visits of the Sumter and other vessels of the so-called Confec
erate States; and if they did make their appearance in Dutch ports, t
require them to leave within twenty-four hours, under penalty of bein
held to occapy a hostile attitude towards the Government of the Netl
erlands. And further, that those authorities have also been instructe
to forbid the furnishing of such vessels with more than twenty-foii
hours' supply of fuel. These instructions, thus defined, are to the poini
Whether they have been made general, and with that disregard of di<
tinctions between the rights of mere belligerents and those of recogniza
nationalities, enjoying pacific relations and acting under treaties o
amity and friendship, that mark the communication to which I havi
adverted, I did not deem it pertinent to inquire, nor do I consider th
inquiry of any value as regards the practical bearings of this case.

^^ In compliance with my request, Baron Van Zuylen has promised U
furnish me with a copy of the order referred to, which, when received
I shall transmit to you without delay.

"Although this order, as thus described to me by Mr. Van Zuylen
only sustains the expectations I have expressed to you on two formei
occasions as to what the action of this Government would be, yet, con
sidering the present attitude of the question, it is a matter of some sor
prise to me that a copy of it should not have been tendered without
waiting to have it asked for. • • • ^

"Taking it to be as herein described, I do not see that the position oi
this Government, so far as its action is concerned, is amenable to vei7
grave censure, whatever may be said of its theoretic views, since the
Dutch ports are now substantially shut to the vessels. The restriction
in regard to supplying fuel, if adopted by other powers holding colonies
in the West Indies, will put an end to rebel operations by steam in those
seas.

" I take some' gratification in reflecting that my persistent appeals to-
the Government to issue specific orders, on some ground, to their colonial
authorities, looking to theexdusion of the piratical vessels of the secediog^
States from the Dutch ports, have not been wliolly unavailing. That
the Government has argued against it, and declined acting on any sag*
gestion I could make, is of small consequence, so long as they have found
out a way of their own of doing the thing that was needed.

" Baron Van Zuylen has renewedly expressed great regret that any
questions should have arisen between the two Governments."

Mr. Pike to Mr. Seward, Oct. 12, 1861 ; Udd.

"I have the honor to inclose you the reply of the minister of foreign
affairs to the communication I addressed to him on the 8tfa instant^iQ
regard to the reappearance of the Sumter at Paramaribo. He states
therein the character of the orders which have been sent to the colonial
authorities, to which I referred in my last dispatch of October 12 {^^
22).

53G

CHAP. XXL] asylum TO BELLIGERENT. [§ 394-

^^Tbo British minister here, Sir Andrew Bnchanan, expressed in-
crednlity and surprise when I informed him this Goyemment had issaed
the order in question. He declared the British Governoilnt would not
doit, and that the United States woald not under similar circumstances-
He said it was giving us an advantage, and was not therefore neutral
condact. He added that Eussia asked Sweden to close her ports against
both belligerents during the Crimean war, and England would not per-
mit it, alleging that as Kussia did not want to use them, and England
did, it gave the former an advantage to which that power Was not en-
titled. The British Government held that Sweden, as a neutral had no-
right to alter the natural situation unless it operated equally.

'^You see herein how thoroughly English officials (and it seems to me-
all others) are imbued with the idea that the rights of a mere belligerent
are the same as the rights of a nation, in cases like the one under con-
sideration.

^^I have received to day a letter from our consul at Paramaribo, dated
September 20, in which he says the United States steamer Powhatai>
arrived there on the 14th in search of the Sumter, and left for Brazil
the same day ^ also that the Keystone State arrived on the 18th on the
same errand, and left on the 19th for the West India Islands."

Same to same, Oct. 16, 1861 ; ibid,

'*By yjDur dispatch of the Sth of this mouth you have fixed my atten-
tentioD ou the <arrival of the Sumter at Paramaribo, and you complain
that on this occasion the said vessel was admitted into ports of the
Netherlands during eighteen days out of the forty-six in which the Sum-
ter had shown herself in the West Indian seas.

^^ You suppose that this is not a fortuitous case, and you demand that
the Government of the Netherlands, in accordahce with the intentions>
mentioned at the close of my communication of the 17th September last,
^^J not permit its ports to serve as stations or as base of hostile opera-
tions against the United States.

"You have not deemed it your duty to enter for the moment on the-
discussion of the arguments contained in my above-mentioned commnni-
^tioa, but you say that you wish to await x)reliminarily the reply of the
Cabinet at Washington.

"I may, therefore, on my part, confine myself for the moment to re-
^<^ning, as to what regards the admission in general of the Sumter into*
(^6 l)orts of the Netherlands and the character of this vessel, to the ar-
Siiments contained in my communication of the 17th September, from
^hich it follows that if \^e do not choose to consider prima facie all the
^l^ips of the seceding States as xM*ivateers, and if, in the present case^
the Sumter could not be, in the opinion of the Government of the Neth-
^lands, coihprised among such, entrance to the ports of the Netherlands-
^nnot be prohibited to that vessel without a departure from neutrality
^od from the express terms of the proclamatiou of the Boyal Govern-
i«ient,

"It has already been observed that the latter, in forbidding access to-
^he ports of the Netherlands to privateers, favors the United States
JJiJch more, among others, than the declaration of the 10th of June by
^he French Government, which, not permitting any vessel-of-war or
Mvateer of the one or the other of the belligerents to sojourn tcith prizes
^^ the ports of the Empire for longer time than twenty-four hours, ex-
^pt in case of shelter through stress {reldcheforcie)^ admits them with-
^^X distinction when they do not bring prizes with them. But, without

637

^ 394.] NEUTRALITY. [CHAP. X

entering here into useless developments, I think I may observe to ^
sir, that the Jloyal Government, whilst refusing to treat as pirates
«ven to consiaer as privateers, all the vessels of the Southern States,
striven, as much as the duties of strict neutrality permit, to keep
Sumter away from our ports. "When this vessel arrived at Paramari
the commanders of two ships of the French imperial marine which ^
there at the time, declared to the governor of Surinam that the Sun
was a regular vessel-of-war and not. a privateer. The commander of
Sumter exhibited afterwards, to the same functionary, his commisc
^s comm^^ndant in a regular navy.

^' Although there was no reason, under such circumstances, to refus
the Sumter the enjoyment of the law of hospitality in all its exteniL
governor, before referred to, strove to limit it as much as possible. Tl
although pit coal is not reputed contraband, if not at most, and wil
a recent time only, contraband by accident, it was not supplied to
Sumter except in the very restricted quantity cf 125 tons, at the n
sufficient for four days' progress.

*' However, the Government of the Netherlands, wishing to giv
fresh proof of its desire [to avoid! all that could give the slightest s
ject for complaint to t^e United States, has just sent instructions to i
^colonial authorities, enjoining them not to admit, except in case of sb
ter from stress {reldche forcie)^ the vesselsof-war and privateers of t
two belligerent parties, unless for twice twenty-four hours, and not
permit them, when they are steamers, to provided themselves witl
quantity of coal more than sufficient for a run of twenty-four hoars.

<^ It is needless to add that the Cabinet of The Hague will not dept
from the principles mentioned at the close of my reply of the 17th S(
tember, of which you demand the application j it does know and w
know how to act in conformity with the obligations of imx>arti{dit7 a:
of neutrality, without losing sight of the care for its own dignity.

*^ Galled by the confidence of the King to maintain that dignity,
defend the rights of the Grown, and to direct the relations of the 8t£
with foreign powers, I know not how to conceal from you, sir, that o
tain expressions in your communications above mentioned, of the t
xtnd 25th September last have caused an unpleasant impression on t
King's Government, and do not appear to me to correspond with t
manner in which I have striven to treat the question now under disci
sion, or with the desire which actuates the Government of the Keth4
lands to seek for a solution perfectly in harmony with its sentiments
friendship towards the United States, and with the observaiice
treaties.

'< The feeling of distrust which seems to have dictated your last d
patch of the 8th of this month, and which shows itself especially
«ome entirely erroneous appreciations of the conduct of the (jrovemmc
of the Netherlands, gives to the last, strong in its good faith and in
friendly intentions, just cause for astonishment. So, then, the Cabic
of which I have the honor to form part deems that it may dispense wi
undertaking a justification useless to all who examine impartially a
without passion the events which have taken place.

^' The news which has reached me from the royal legations at Lood
and at Washington, relative to the conduct of the British Governma
in the affair of the Sumter, can only corroborate the views develop
in my reply of the 17th September last, and in the present communis
tion.

^' It results from this, in effect, that hot only has the British Govd^
ment treated the Sumter exactly as was done at Gura9oa, since tl

638

€HAP. XXI.] ASYLUM TO BELLIGERENT. [§ 394.

vessel sojourned six or seven days at the island of Trinidad, where she
was received amicably and considered as a vessel-of-war, bat that the
Crown lawyers of England, having been consulted on the matter, have
unanimously declaimed that the conduct of the governor of that colony
of England had been in all points in conformity with the Queen's proc-
lamation of neutrality.

^^According to them the Sumter was not a privateer but a regular
vessel-ofwar (duly commissioned), belonging to a state possessing the
rights of war (belligerent rights).

*'Tlie Sumter, then, has been treated as a vessel-of-war of the United
States would have been, and that vessel had the same right to obtain
supplies at Trinidad as any vessel belonging to the navy of the Northern
States." -^

Baroa Van Zuylen, to Mr. Pike, Oct. 15, 1861; ibid.

**^Your dispatch of the 25th of September, No. 18, has been received.
It is accompanied by a note which was addressed to you by Baron Van
Zo jleu, on the 17th day of September last, on the subject of the ad-
mission of the pirate steamer Sumter into the port of Gura9oa.

*'*' I reproduce the account of that transaction, which was made by this
trovemment a subject of complaint to the Oovernment of the Nether-
lands. The steamer Sumter hove in sight of the port of Gura9oa on the
evening of the 15th of July, and fired a gun for the pilot, who immedi-
ately took to sea. On his reaching the pirate vessel she hoisted what
i9 called the Confederate flag, and the same being unknown in that port,
the pilot told the captain that he had to report to the governor before
taking the vessel into port. The pilot having made this report, the gov-
ernor replied to the captain that, according to orders from the supreme
^Temment, he could not admit privateers into the port, nor their
prizes, but in the case of distress, and therefore the steamer could not
^ admitted before her character was perfectly known.

^^In reply to this message the captain of the steamer remained outside
of the port until the next morning, when he sent a dispatch to the gov-
ernor, by an officer, stating that his vessel being a duly commissioned
inanof-war of the Confederate States, he desired to enter the port for a
few days. The colonial court assembled the same evening, and, on the
^ond of the declaration and assurance of the privateer captain that
the vessel is not a privateer, it was decided that she should enter the
P<>rt. aod she entered accordingly.

'*The consul of the United States thereupon informed the governor,
% a note, that the steamer was, by the laws and express declaration of
the United States, a pirate, and that on her way from New Orleans to
Cura^a she had taken and sent for sale to the Spanish island of Cuba
^veral American merchant vessels, and on these grounds he asked upon
what pretext and conditions the unlawful steamer had obtained admit-
tance into Cura9oa.

**The governor answered that, according to the orders received from
^^ supreme Government, neither privateers nor their prizes are to be

539

^ 394.] NEUTRALITY. [CHAP. XXr_

allowed admittance to the ports or bays of this colony, save only ii
cases of distress. Bat that this prohibition does not extend to vessels -
ot-war,and that the Samter being a maB-of- war, according to the nile^^.
of nations, coald not be repelled from that port

''The piratical vessel was then supplied, at Gara^oa, with 120 tons c^f
coals, and departed at her own time and pleasure. On receiving thS. ^
information you were instructed to call the attention of the GovemmerzK^t}
of the Netherlands to the proceeding of the governor of Gura^oa, and
ask that the proceedings, if correctly reported, might be disav
and that the governor might be made to feel the displeasure of his Go
emment.

^'You performed this duty in due season by addressing a proper
to Baron Van Zuylen. On the 2d of September he acknowledged jO'
note, and promised you an early reply on the merits of the subject.

''On the 17th of September he communicated this reply to you in
note which is now before me.

"I encounter difficulty in giving you instructions for your reply ^o
that paper, because, first, since the correspondence was opened a six3CB.i-
lar case of violation of our national rights has occurred in the hospit=;^3^1-
ities extended to the same piratical vessel in the Dutch port of Pemak:MX)-
buco, and has been made a subject of similar complaint, which as y^^i,
so far as I am advised, remains unanswered ; and, secondly, the not^^ ^f
Baron Yan Zuylen promises that special instructions shall be spee<3^Uy
given to the colonial authorities of the Netherlands in regard to (t^oh-
duct in cases similar to those which have induced the existing c^z^^^q-
plaints. I cannot, of course, foresee how far those instructions, yet '■a^ii-
known to me, may modify the position assumed by the minister of :^5or-
eign affairs in the paper under consideration.

" Under these circumstances, I must be content with setting forth , i^or
the information of the Government of the Netherlands, just what ^^^
United States claim and expect in regard to the matter in debate.

"They have asked for an explanation of the case, presented by *lie
admission of the Sumter by the governer of Gura9oa,.if one cacB. ^
satisfactorily given ; and if not, then for a disavowal of that offio^^^
proceedings, attended by a justly deserved rebuke.

"These demands have been made, not from irritation or any s©**^^*
bility of national pride, but to make it sure that henceforth any pirat^i^^'
vessel fitted out by or under the agency of disloyal American citi^^**^
and cruising in pursuit of merchant vessels of the United States, sti^^'
not be admitted into either the continental or the colonial ports of ^^^
Netherlands under any pretext whatever. If that-assurance cannat t^
obtained in some way, we must provide for the protection of our rig^^*
in some other way. Thus, the subject is one of a purely practical cb^'
acter; it neither requires nor admits of debate or argument on the p^^
of the United States. If what is thus desired shall be obtained by the-
United States in any way, they will be satisfied ; if it fails to be oh-

540

^HAP. XXL] asylum to BELLIGERENT. [§ 894.

tained throagh the disinclination of the Government of the Netherlands,
its proceedings in this respect will be deemed nnfriendly and injurions
to tbo United States. The United States being thas disposed to treat
tho subject in a practical way, the^- are not tenacious about the manner
or form in which the due respect to their rights is manifested by the
GoverDment of the Netherlands, and still less about the considerations
or arguments upon which that Government regulates its own conduct
in the matter. They regard the whole insurrection in this country as
ephemeral ; indeed, they believe that the attem p t at piracy under the name
of privateering, made by the insurgents, has already well nigh failed,
^^^liile, therefore, they insist that shelter shall not be afforded to the
Pinites by nations in friendship with the United States, they, at the
^^uxe time, are not unwilling to avoid grave debates concerning their
'^g^hts that might survive the existing controversy. It remains only to
^v in this connection, that the course which the United States are pur-.
«uiug in their complaints to the Government of the Netheriands is not
Peculiar, but it is the ^ame which has been and which will be pursued
Awards any other maritime power on the occurrence of similar griev-
ances.

*' With these remarks, I i)roceed to notice Baron Van Zuylen's com-
**^^iiication. You will reply to him that the United States unreservedly
'^laim to determine for themselves absolutely the character of the Sumter,
"^he being a vessel fitted out, owned, armed, sailed, and directed by Amer-
*<^n citizens who owe allegiance to the United States, and who neither
*^Hve nor can, in their piratical purposes and pursuits, have or claim
**^y political authority from any lawful source whatever.

*'The United States regard the vessel as piratical, and the persons by
f ^om she is manned and navigated as pirates. ^

] '* The United States, therefore, cannot admit that the Sumter is a
nip-of-war or a privateer, and so entitled to any privileges whatever,
I either of those characters, in the port of Ouragoa; nor can they de-
ft© any such subject with the Government of the Netherlands. This
Ul be all that you will need to say in reply to the whole of Baron Von
■ylen's note, except that portion of it which states, rather by way of
knment than of assertion, that according to the information received
TO the governor of Curagoa (by the Government of the Netherlands)
\ Sumter was actually in distress, and that functionary therefore
(d not refuse to allow the said vessel to enter the port.
uf this position shall be actually assumed by tho Government of the
jherlands two questions will arise : first, whether the fact that the
Iter was in distress was true, or a belief of the truth of that fact
'the real ground upon which she was admitted by the colonial gov-
I into the port of Gura^oa; secondly, how far a piratical vessel,
)g over the seas in pursuit of peaceful commercial vessels of the
|d States, and fleeing before their naval pursuit, but falling into

1 541

§ 394.] NEUTRALITY. [CHAP. XXI

distress herself, is cutitled to charity at the hauds of a state friendly t(
the nation upon whose commerce her depredations are directed.

'' It would hence be idle to occupy ourselves with a discussion of these
questions until we know that the Government of the Netherlands de
termines to stand upon the main position from which they are derived.

" You will therefore ask the Baron Van Zuylen for an explicit state-
ment on this subject.

'' I cannot but hope, however, that the Government of the Netherlands
will come to the conclusion that it is wisest and best, in view of the re-
lations of the two countries, to give such directions to its agents as will
render further prosecution of this discussioa unnecessary, while it will
prevent similar injuries in future to our national dignity and honor.
Should it determine otherwise, and not be able to place the conduct of
the governor-general at Gura^oa in a better light than it has already
done, it will become necessary to consider what means we can take to
protect, in the ports of the Netherlands, national rights which cannot
be surrendered or compromised.

Mr. Seward,, Sec. of State, to Mr. Pike, Oct. 17, 1861. MSS. Innt., Nether-
lands; ibid,

^^ I had the honor to transmit to you on the 16th instant, the last com-
munication of this Government in respect to the Sumter case, referring
to the orders recently given to its colonial authorities, by which the stay
of such vessels in Dutch ports is limited to 24 hours, and by which they
are also forbidden to take on board more than 24 hours' supply of coal.

'' Considering these orders to be important, I have, in the following
copy of my reply to the Dutch Government, ventured to express a qual-
ified satisfaction at their issue. I am in hopes you will adopt a similar
view of the case, as I conceive this Government to be well disposed to-
wards the United States, and to consider that it has strained a point in
our favor.

^' I doubt if England or France will do anything of the sort; but the
course of Holland will, at least, furnish excellent grounds for some per-
tinent questions in case they decline.

'^ I have informed Mr. Adams, and also Mr. Dayton and Mr. Schurz,
of the final action of tbis Government in this case. The copy of my
note follows (to Baron Van Zuylen) :

<' < United States Legation^ The Haguey October 22, 1861.

^^ < Sib : In reply to your communication of the 15th instant, which H
have had the honor to receive, I take pleasure in assuring your excel -
lency that it has been far from my purpose to say anything at any tim^
which should occasion painful impressions on the part of HisMajesty*^^
Government, or to use language marked by impatience or irritation a^
the course of the Government of the Netherlands. But while makim^
this disclaimer, frankness compels me to add that I should not kn<^^
in what more moderate terms to express my sentiments than tbose^ J
have had the honor to employ in addressing His Majesty's Govern-
ment.

" * I desire further to say, in respect to that part of your excellen<^j'^
communication which refers to the recent orders given to the Datch
colonial authorities not to permit vessels engaged in pirating upon the

642

CHAP. XXL] asylum TO BELLIGERENT. [§ 394.

United States commerce to remain in their ports more than 24 hoars,
and, when steamers, not to be famished with more than 24 hoars' sap-
ply of fael, that, while I receive the annoaucement with satisfaction, it
18 qualified by deep regrets at the position His Majesty's Government
has thoaght proper to take in placing the misguided persons in rebel-
lion against the (Jnited States on a footing of eqnality, in a most im-
portant respect, with the Government to which they owe obedience;
for, tbongh the orders in qnestion deny shelter and aid to pirates, it is
impossible to regard with complacency the fact that the exclnsion op-
erates egaally against the vessels of the United States, denying to them
that accastomed hospitality ever accorded by friendly nations.

"^Abstaining, however, now as heretofore, from any discassion on
this topic while awaiting the reply of my Government to your commn-
pication of the 17th of September, I will only add that I feel assnred
the United States Government will fully share these regrets, and I can
only hope will not impeach my expressions of satisfaction at the orders
which yoa inform me have been given in accordance with the rule of
action laid down in that paper, notwithstanding the position falls so
far short of that which the United States have confidently expected
Holland would occupy on this question.'"

Mr. Pike to Mr. Seward, Oct. 23, 1861 ; ihid,

"Tour dispatch of October 9 (No. 20) has been received. We wait
with much interest the result of your application to the Government of
the Netherlands for explanations of the hospitalities extended by its
colonial authorities to privateers."

Mr. Seward, Sec. of State, to Mr. Pike, Oct. .30, 1861. MSS. Inst., Netherlands ;
Und.

**Tonr dispatch of October 12 (So. 22) has been received. I learn
with much pleasure that you have assurances which, although informal,
lead you to expect that a satisfactory course will be adopted by His
Majesty's Government in regard to the exclusion of privateers from the
ports of the Netherlands."

Mr. Seward, Sec. of State, to Mr. Pike, Nov. 2, 1861 ; ibid.

**Iduly received your dispatch (No. 25) of the 10th of October, but
^*ye nothing by the last mail. I await your response to the communi-
cation of Mr. Van Zuylen of the 17th of September last.
J* I have the honor to inclose you the reply of the minister of foreign
«&irs to my note of the 22d of last month, a copy of which I forwarded
^ you in my last.

Mr. Pike to Mr. Seward, Not. 6, 1861 ; iUd.

**I have had the honor to receive your letter of the 22d of this month,
relative to the afl^ir of the Sumter, and it has been gratifying to me
p^ learn from its tenor that you have received with satisfaction the in-
^^mation as to the measures adopted by the Government of the Low
y^ontries to prevent the return or the prolonged stay in its ports of
^^^Is which, like the Sumter, seemed to desire to use them as the
^^^of their operations against the commerce of the adverse party.

**Tou regret only that the Government of the King should have
SJopted the game treatment towards the war vessels of the seceding
^tflites and those of the United States.

643

<§ 394.] NEUTRALITY. [CHA

<' Without enteriug here into an extended discussion, rendered
over, almost superfluous by my two preceding communications,
merely permit myself, sir, in referring to their contents, to cause
observe that, agreeably to the doctrine of the best publicists, nei
imposes upon those nations which desire to enjoy its benefits
plete abstention from all that could establish a difference of tre
between the belligerent parties, and that this principle applies
to the cases of civil war, or even of rebellion, as to that of an oi
war.

^ "Your Government having desired that measures should be U
.prevent a prolonged stay in our ports of the Sumter, or other ves
war of the seceding States, we have admitted the justice of this
JBut these measures could not reach exclusively one of the tyro p
they were to be general, a>nd the consequence of it is that the i
.structions given to the governors of Curagoa and of Surinam :
permit the vessels-of-war of the United States, except in the cas*
ing compelled to put into a port, to sojourn in the ports of the ]
lands, in the West Indies, for a longer time than twice 24 houi
not for only 24 hours, as you seem to believe).

" Nevertheless, the privateers, with or without their prizes,
lieretofore, excluded from the Netherland ports, and it is by an ov(
which I hasten to rectify, that the words * and the privateers ' ha^
introduced into that part of my communication of the 15th of this
which calls your attention to the instructions transmitted to the <
authorities."

Baron Van Zuylen to Mr. Pike, Oct. 29, 1661 ; ibid.

" Your dispatch No. 24, dated October 23, has been received.

<' I learn from it that the Government of the Netherlands has ni
►order which will, it is hoped, practically prevent the recurrence
countenance and favor to pirates in the ports of that state as ^
heretofore complained of. You will express to Baron Zuylen on
faction with this proceeding, viewed in that light, but you wil
less explicit in saying that this Oovernment by no means assent
qualifications affecting its claims as a sovereign power upon tb<
erlands by which the procecidihg is qualified.

" Not only are we not seeking occasions for difference with a
•eign powers, but we are, on the other hand, endeavoring to p
amity and friendship with them all, in a crisis which tries the ]
nimity of our country. Infiuenced by these feelings, I can on!
that no new injury or disrespect to our flag may occur in the i
the Netherlands, to bring the action of their Government agaii
review by us.

" I am directed by the President to express his approval of t
gence and discretion you have practiced in this important transs

Mr. Seward, Sec. of State, to Mr. Pike, Nov. 11, 1861. MSS. Inst, Neth
ibid.

«* Your dispatch of October 16 (No. 23) has been received,
tains the reply of Mr. de Zuylen to the note you had addressed
^n the subject of the Sumter at Paramaribo.

644

CHAP. XXI.] ASYLUM TO BELLIGERENT. [§ 394.

" In another paper I have already commanicated the President's views
of tbe disposition of that subject made by the Government of the
Netherlands, so that nothing remains to be said on the subject which
yon have had occasion to discuss in the dispatch now before me."

Same to same, N^yv^. 11, 1861 ; ibid.

*^YoQr dispatch of November 6 (No. 25) has just been received. I
have ah-eady anticipated and disposed of the principal subject which it
preseDts.

^^ Felicitate the Government of the Netherlands as we felicitate our-
selves on the renewed auguries of good and cordial relations between
Mends too old to be alienated thoughtlessly or from mere impatience."

Same to same, Nov. 23, 1861 ; ibid,

'^1 freely admit that it is no part of a neutral's duty to assist in
making captures for a belligerent, but I maintain it to be equally clear
that, 80 far firom being neutralityi it is direct hostility for a stranger to
intervene and rescue men who had been cast into the ocean in battle,
and then carry them away from under the conqueror's guns."

Mr. Seward, Sec. of State, to Mr. Adams, Jaly 15, 1864. MSS. Inst., Qr. Brit.

Under the nineteenth article of the treaty with France of 1778, a pri-
vateer has a right, on any urgent necessity, to make repairs in any ports
of the United States. The replacement of her force is not an augmen-
tation of it.

Moodie v. The Ship Phoobe Anne, 3 Dall., 319. See as to treaty of 1778 $upra,
$148.

It Ib customary for neutral powers, either by treaty or by regulations
^hen the exigency arises, to limit the right of asylum. Privateers are
^ot held as equally entitled with ships-of-war to the right of asylum ;
^d it is not uncommon for neutral nations wholly to exclude them from
their ports.

7 Op^ 122, Cnahing, 1855.

Ab to prizes of war, the same right exists, either to wholly admit
them or wholly exclude them.
ihd.

Armed ships of a belligerent, whether men-of-war or private armed
Risers, are to be admitted, with their prizes, into the territorial waters
^& neutral for refuge, whether from chase or from the perils of the sea.
^^t it is a question of mere temporary asylum, accorded in obedience to
the dictates of humanity, and to be regulated by specific exigency.
^« right of asylum is, nevertheless, presumed where it has not been
P'^viously denied.

Ibid,

8. Mis. 162— YOL. m 35 645

§395,] NEUTRALITY. [CHAP. XXJ

Althoagli a oeatral must mot lond his territory for purposes of wai
he may receive a beaten army or individual fugitives, provided he die
arms them and does not allow them again to engage in the war. Ba
as he cannot be expected to provide for them himself, and as to reqoir
either belligerent to pay for their support would be indirectly aiding th
other, '< perhaps the equity of the case and the necessity of precaatio;
might both be satisfied by the release of such fugitives under a convei]
tion between the neutral and belligerent states, by which the latte
should undertake not to employ them during the continuance of tb
war."

Hall's Int. Law, $ 230. Infra, $ 398.

As to privileges of public armed ships in foreign ports, see suj^c^h 3^

n. RE81RICT10NS OF NEUTRAL.

(1) BOUXD TO RESTRAIN EXLISTMBKT6 BY BBLLIOERBKT.

§ 395.

<< The granting military commissions within the United States by ai:
other authority than their own is an infringement on their sovereignt;
and particularly so when granted to their own citizens to lead them
commit acts contrary to the duties they owe their own country.''

Mr. Jefferson, Sec. of State, to Mr. Genet, June 5, 1793; 1 Wait's St. Pap, €

1 Am. St. Pap. (For.Rel.), 150.
Mr. Jefferson's letter of May 15, 1793, to Mr. Temant, forbidding French i

cmiting in the United States, is given in 1 Am. St. Pap. (For. BeL), 149.

«< Mr. Genet asserts his right of arming in our ports, and of enlis
ing our citizens, and that we have no right to restrain him or punis
them. Examining this question under the law of nations, founded o\
the general sense and usage of mankind, we have produced proofisfiroo
the most enlightened and approved writers on the subject that aDentra
nation must, in all things relating to the war, observe an exact impa^
tiality towards the parties ) that favors to one to the prejudice of the
other would import a fraudulent neutrality, of whiph no nation woald
be the dupe ; that no succor should be given to either, unless stipu-
lated by treaty, in men, arms, or anything else directly serving for vftfi
that the right of raising troops being one of the rights of sovereigotfj
and consequently appertaining exclusively to the nation itself, no foreign
power or person can levy men within its territory without its consent;
and he who does may be rightfully and severely punished ) that if tb(
United States have a right to refuse the permission to arm vessels &&<'
raise men within their ports and territories they are bound by the law
of neutrality to exercise that right, and to prohibit such armaments a&<
enlistments. To these principles of the law of nations Mr. Gtonet ai
swers by calling them ' diplomatic subtilties ' and ^ aphorisms of Vstt
and others.' But something more than this is necessary to dispio'
them \ and till they are disproved, we hold it certain that the law

546

CHAP. XXL] BELLIGEBBNT BECBUITING. [$ 395.

nations and the rules of neutrality forbid our permitting cither party
to arm in our ports."

Mr. Jefferson, See. of State, to Mr. Morris, Aug. 16, 1793. MSS. Inst., Ministers.
4 Jeff. Works, 34.

**T^hile the laws of the Union are thus peremptory in their prohibition
of the equipment or armament of belligerent cruisers in our ports, they
provide not less absolutely that no person shall, within the territory or
Jurisdiction of the United States, enlist or enter himself, or hire or retain
another person to enlist or enter himself, or to go beyond the limits or
jurisdiction of the United States with intent to be enlisted or entered,
in the service of any foreign state, either as a soldier or as a marine or
«eaman on board of any vessel-of-war, letter of marque, or privateer.
And these enactments are also in strict conformity with the law of na-«
tions, which declares that no state has the right to raise troops for land
or sea service in another state without its consent, and that, whether
forbidden by the municipal law or not, the very attempt to do it with-
out snch consent is an attack on the national sovereignty.

^^ Such being the public rights and the municipal law of the United
States, no solicitude on the subject whs entertained by this Govern-
luent, when, a year since, the British Parliament passed an act to pro-
^de for the enlistment of foreigners in the military service of Great
Britain. Nothing on the face of the act, or in its public history, Indi-
<^t«d that the British Government proposed to attempt recruitment in
the United States, nor did it ever give intimation of such intention to
tlu8 Government. It was matter of surprise, therefore, to find, subse-
quently, that the engagement of persons within the United States to
proceed to Halifax, in the British province of Nova Scotia, and there
'Bulist in the service of Great Britain, was going on extensively, with
little or no disguise. Ordinary legal steps were immediately taken to
attest and punish parties concerned, and so put an end to acts infring-
% the mnnioipal law and derogatory to our sovereignty. Meanwhile
^ititble representations on the subject were addressed to the British
*^vemment. ^

'^Thereupon it became known, by the admission of the British Gov-
^niment itself, that the attempt to draw recruits from this country
<ffigiiiared with it, or at least had its approval and sanction ; but it
^api>eared that the public agents engaged in it had < stringent in-
stractions' not to violate the municipal law of the United States.

'^ It is difficult to understand how it should have been supposed that
troops could be raised here by Great Britain without violation of the
mnnicipal law. The unmistakable object of the law was to prevent
orery such act, which, if performed, must be either in violation of the
Jaw or in studied evasion of it ; and in either alternative, the act done
would be alike injurious to the sovereignty of the United States.

647

§ 395.] NEUTEALITY. [CHAP.

'' In the uieau time the matter acquired additional importance by
recraitiiieuts in the United Staten not being dlBContinued, and the
closnre of the fa<$t that they were prosecuted upon a systematic
devised by civil authority ; that recruiting rendezvous had been opecK^ed
in our principal cities, and depots for the reception of recruits est^b
lished on our frontier; and the whole business conducted under tiie
supervision and by the regular co-operation of British officers, civil auci
military, some in the North American provinces and some in the TJnitec I
Suites. ^The complicity of those officers in an undertaking which coulcl
only be accomplished by defying our laws, throwing suspicion overoc^*
attitude of neutrality, and disregarding our territorial rights, is cqf^-
clusively proved by the evidence elicited on the trial of such of thex i'
agents as have been apprehended and convicted. Some of the ofUce^''^
thus implicated are of high official position, and many of them bevoiL^^
our jurisdiction, so that legal proceedings could not reach the soured' ^
of the mischief.

<^ These considerations, and the fact that the cause of complaint w^^^
not a mere casual occurrence, but a deliberate design, entered upon wic — ^
full knowledge of our laws and national policy, and conducted by r^^*
sponsible public functionaries, impelled me to present the case to tb::^^
British Oovernment, in order to secure, not only a cessation of the wron^tf ?
but its reparation. The subject is still under discussion, the result ^^^
which will be communicated to you in due time."

President Pierce^ Third Annaal Message, 1855.

As to dismissal of British minister on this gronnd, see Bupra, $ 84

As to the right voluutarily to enUst, see supra, $ 392.

If a public armed vessel of a belligerent violate our neutrality li:^^
unlawfully enlisting men in our ports, the property captured by her ^^^
the ensuing cruise will, if brought within the territorial limits of tft:'^
United States, be restored to the original owners.

The Santissima Trinidad, 7 Wheat., 283.

A contract between citizens of the United States and an inhabita^^^
of Texas, to enable him to raise men and procure arms to carry on tb^
war with Mexico, the independence of Texas not having been ackno^^'
edged by the United States, was held contrary to. our national obhg^
tions to Mexico, and violative of our public policy. It cannot, therefor^*
be specifically enforced by a court of the United States.

Kennett v. Chambers, 14 How., 38.

Colombian vessels are entitled, under articles 6 and 31 of the treat?
with that Republic of 1824, to make repairs in our ports when foro^
into them by stress of weather, but not to enlist recruits there, eitli^^
from our citizens or ficom foreigners, except such as may be transieDtlJ
within the United States.

2 Op., 4, Wirt, 1825.

548

AF. XXI.] PILIBUSTERING EXPEDITIONS. [§ 395a.

Che enlistment at New York of seamen or others for Bervlce on war
»el8 of Mexico (she being at war with Texas), saoh persons not being
Lzicans transiently within the United States, is a breach of the act
1818.

4 Op., 336, NeUon, 1844.

Che attempt by one Government to enlist troops in the territory of
3ther, without the latter's consent, is just cause of war.

7 Op., 367, Cashing, 1855.

Foreign levies may not be allowed to one belligerent and refused to
) other, consistently with the duties of neutrality.

Ihid,

A. foreign minister who engages in the enlistment of troops here for
I Ck>vemment is subject to be summarily expelled from the country;
I after demand of recall, dismissed by the President.

Ibid. Supra, $ 84.

If agents of the British Government, being instructed to enlist mili-
ry recruits, succeed in evading the municipal law and so escape pun-
hment as malefactors, ^^such successful evasion serves to increase the
ttensity of the international wrong done the United States."

8 Op., 468, Onshing, 1855. See ibid., 476, Cashing, 1856. 34th Cong., lot tess.,

Honse Ex. Doo. 107.
For dismiflsal of British minister and consul, see mpra, $ 84.
For indictment in U. S. v. Hertz, for illegal recmiting, see Whart. Prec., lUQL

(2) Ob issuino of abmed kxpkditions.

§395a.

*^The aiding either party, then, with vessels, arms, or men, being un-
Bwfal by the law of nations, and not rendered lawful by the treaty, it
8 made a question whether ourcitizens, joining in these unlawful enter-
prises, may be punished. The United States being in a state of peaoe
^th most of the belligerent powers by treaty, and with all of them by
be laws of nature, murders and* robberies committed by our citizens,
^thin our territory, or on the high seas, on those with whom we are so
^ peace, are punishable, equally as if committed on our own inhabi-
!<^QtB. If I might venture to reason a little formally, without being
'barged with running into subtilties and aphorisms, I would say that if
>Qe citizen has a right to go to war of his own authority, every citizen
^ the same. If every citizen has that right, then the nation (which
i composed of all its citizens) has a right to go to war, by the authority
^ its individual citizens. But this is not true either on the general
principles of society, or by our Oonstitution, which gives that power to
ingress alone and not to the citizens individually. Then the first po-
tiUoQ was not true, and no citizen has a right to go to war of his own

54d

§ 395a.] NBUTEALITY. [CHAP. r

authority; and for what he does without right he ought to be ponishi
Indeed, nothing can be more obviously absurd tLan to say that all t
citizens may be at war, and yet the nation at peace. It has been p
tended, indeed, that the engagement of a citizen in an enterprise of t
nature was a divestment of the character of citizen, and a transfer
jurisdiction over him to another sovereign. Our citizens are certaii
free to divest themselves of that character, by emigration, and ot]
acts manifesting their intention, and may then become the subjects
another power, and free to do whatever the subjects of that power mt
do. But the laws do not admit that the bare commission of a cnir
amounts of itself to a divestment of the character of citizen, and witJ
draws the criminal from their coercion."

Mr. Jefferaon, Sec. of State, to Mr. Morris, Aug. 16, 1793. MSS. Inst., Minister

In 1806 an expedition was concocted in New York by Miranda,
Spanish adventurer, for the invasion of Spanish America. On the trii
of Smith and Ogden at New York for participation in this enterprisi
the defendants offered to prove that the President had approved of tb
enterprise after due notice to him of its character. The court held thi
the testimony was irrelevant, as prior approbation by the President <
an illegal act would not condone it ''Although the charge of the jndg
was strongly against the defendants, and there was no question as I
the law, the jury returned a verdict of not gailty."

Note by Mr. W. B. Lawrence in 2 Whart. Cr. Law, $ 1908. See this case notioi

in other relations, infra, $ 404.
In instructions from Mr. Madison, Sec. of State, to Mr. Arifastrong, Mar. 1

1606, it is shown that prompt and rigorous measures were taken by tl

Government to suppress this expedition.
A report on petition of citizens alleging that they were ignorantly drawn ioi

Miranda's expedition and were subsequently held in slavery by the SpsDU

Government is in Ex. Doc, June 9, 1809, 11th Cong., 1st sess.

^< Miranda had the address to make certain persons of New Tori
among others Ool. W. Smith, the surveyor, believe that on his visit "
Washington he had enlisted the Executive in a secret sanction of ii
project. They fell into the snare, and in their testimony, when exai
ined, rehearsed the representations of Miranda as to what pass4
between him and the Executive. Hence the outcry against the latt
as violating the law of nations against a friendly power. The truth
the Government proceeded with the most delicate attention to its dat
on one hand keeping in view all its legal obligations to Spain, and <
the other not making themselves, by going beyond them, a pari
against the people of South America. I do not believe a more uaexoe]
tionable course was ever pursued by any Government."

Mr. Madison, Sec. of State (unoffloial), to Mr. Monroe, Mar. 10, 1806. 2 H»<

son's Writings, 2S0.
See Dana's Wheaton, $ 439, note 218, for details as to Miranda's expedition. B«

also, i^fra, $ 404. ,

550

CHAP. XXL] issuing OF BELLIGEEENT CRUISERS. [§ 396.

" What have been called expeditions organized within oar limits for
foreign service have been only the departure of nnassociated individ-
nals. Snch a departure, though several may go at the same time, con-
stitutes no infringement of our neutrality laws, no violation of neutral
obligations, and fomishes no ground for the arraignment of this Gov-
ernment by any foreign power.'^

Mr. Maroy, Seo. of State, to Mr. Esoalante, May 8, 1856. MSS. Notes, Spain.

"While any citizen of the United States is at liberty, under munici-
pal and international law, to expatriate himself unarmed and to engage
individaally when abroad in any foreign service that he may choose,
yet on the other hand the laws of the United States, and the law of
nations, as they are understood by us, forbid the Oovemment from au-
thorizing or permitting the enlistment or organization on American
gronnd, or the departure fh)m our territory, of armed military forces
to cany on hostilities against any foreign state, except in a war against
that state duly declared by Congress.

"The Prince Maximilian is eitiier a principal or a subordinate bellig-
^Dt in Mexico. The treaty which has been made between Austria
ftnd that belligerent by which the former authorizes the organization
within the Austrian dominions of two thousand or more volunteers,
manifestly to be engaged in war against the Bepublio of Mexico, is
deemed by this Oovemment inconsistent with the principle of neutrality
uid an engagement with Maximilian in his invasion of that Bepublic."

Mr. Seward, Sec. of State, to Mr. Motley, Apr. 30, 1866. MSS. Inst., Aastria.

A mere preparation or plan of violation of neutrality, without overt
^ does not make the party amenable under section 6 of the neutrality
^t of 1818 (Bev. Stat., § 5286). If the means provided were procured
^ be used on the occurrence of a future contingent event, no liability is
Paired under the statute. If, also, the intention is that the means
P^vided shall only be nsed at a time and nnder circumstances when
^y could be used without a violation of law, no criminality attaches
^ the act.

U. S. V. LumBden, 1 Bond, 5.

(3) Bound to bxstbaik FrrriKO out of axd sailxng of armed cruisers of

BBLUGERENT.

§396.

'^The practice of commissioning, equipping, and manning vessels in
^f ports to cruise on any of the belligerent parties, is equally and en-
^ly disapproved, and the Oovemment will take effectual measures to
P^venta repetition of it.^

Mr. JelSeraoD, Sec. of State, to the minister of Great Britain, May 15, 1793.
MSS. Notes, For, Leg. 3 Jeff. Works, 105.

551

§ 396.] NEUTRALITY. [CHAP. XJ

<' Under the second point of view it appears to me wrong on the pa
of the United States (where not constrained by treaties) to permit o
party in the present war to do what cannot be permitted to the oth<
We cannot permit the enemies of France to fit oat privateers in o
ports by the 22d article of onr treaty. We onght not, therefore,
permit France to do it, the treaty leaving as free to refase, and the i
fnsal being necessary to preserve a fair neatrality. Yet, considerl^
that the present is the first case which has arisen ; that it has been
the first moment of the war, in one of the most distant ports of t
United States, and before measures coald be taken by the Governm^
to meet all the cases which may flow from the infant state of our Ort
ernment and novelty of our position, it ought to be placed by Ore
Britain among the accidents of loss to which a nation is exposed in
state of war, and by no means as a premeditated wrong on the part <
the Oovemmeut. In the last light it cannot be taken, because the ac
from which it results placed the United States with the offended, an«
not the offending, party. Her minister has seen that there could hav
been on our part neither permission nor connivance. A very moderat
apology, then, from the United States ought to satisfy Great Britain

Opinion of Mr. Jeffenon, Seo. of State, on the restitution by the United Stat
of prisee taken by French privateers fitted out in Charleston, May 1
1793. 2 Randall's Life of Jefferson, 137.

^^ The President, • • • after mature consideration and deliber
tion, was (in the case of Oitoyen Genet) of opinion that the arming ai
equipping of vessels in the ports of the United States to cruise again
nations with whom they are at peace was incompatible with the ten
torial sovereignty of the United States, and makes them instrument
to the annoyance of those nations, and thereby tends to compromit the
peace.^

Mr. Jefferson Sec. of State, to Mr. Genet, Jane 5, 1793 ; affirmed by Mr. Sa
dolph, Seo. of State, in letter to Mr. Fanchet, May 29, 1795. M8S. Not<
For. Leg. 1 Am. St. Pap. (For. Rel.), 150. Qenet's answer, idkl., 151.

'<As it was apprehended by the President of the United States th
attempts might be made by persons within the United States to an
and equip vessels for the purpose of cruising against some of the powe:
at this time engaged in war, whereby the peace of the United Slate
might be committed, the governors of the several States were desire
to be on the watch against such enterprises, and to seize such vessel
found within the jurisdiction of their States."

Mr. Jefferson, Seo. of State, to U. S. district attorney for N. Y., June 12, 179
MSS. l)om. Let.

In Mr. Jefferson's letter of June 17, 1793, to Mr. Genet, he stati
that it being reported to the President that an arcied French craia
was fitting out, arming, and manning iu the port of New York, for t.

652

OHAP. XXL] issuing OF BELLIGERENT CRUISEBS. [§ 396.

express purpose of croising against certain other nations with whom
lire are at peace^ that she had taken her guns and ammanition aboard,
And was on the point of departure, ^' orders were immediately sent to
deliver over the vessel and the persons concerned in the enterprise to
the tribunals of the country, that if the act was of those forbidden by
the law it might be punished; if it was not forbidden it might be so
<ieclared."

1 Wait's St. Pap., 90 ; 1 Am. St. Pap. (For. Bel.), 154.

Genet's notes of Jnne 25, 1793, giving notice of arming of English vessels in
United States harbors are given in 1 Am. St. Pap. (For. Bel.), 159, and in
sncceeding pages of the same volnrae otlier correspondence as to arming of
vessels in snoh ports.

«<

RULES ADOFTBO BT THE CABINET AS TO THE EQUIPMENT OF VESSELS IN THE PORTS
OV THE UNITED STATES BT BELLIOEBKNT POWERS, AND PROCBEDINQ8 UN THE CON-
I>T7CT OF THE FRENCH BfXNISTER.

«c

"August 3,1793.
1. The original arming and equipping of vessels in the ports of the United States
^7 any of the belligerent parties for military service oifensive or defensive is deemed
«u»lawfhl.

** 2. Equipments of merchant vessels by either of the belligerent parties, in the
ports of the United States, purely for the accommodation of them as such, is deemed

** 3. Equipments, in the ports of the United States, of vessels-of-war in the im-
iKKQdiate service of the Ck>vemment of any of the belligerent parties, which, if done
^ other vessels, would be of a doubtful nature, as being applicable either to com-
^«roe or war, are deemed lawful ; except those which shall have made prize of the
^^bjects, people, or property of France, coming with their prises into the ports of the
United States, pursuant to the seventeenth article of our treaty of amity and com-
ttierce with France.

" 4. Equipments in the ports of the United States by any of the parties at war
^th France, of vessels fitted for merchandise and war, whether with or without
Mmniissions, which are doubtful in their nature as b<^ing applinable either to com-
i&eroe or war, are deemed lawful, except those which shall be made prise, etc.

" 5. Equipments of any of the vessels of France in the ports of the United States,
'^hich are donbtful in their nature as being applicable to commerce or war, are
deemed lawful.

**6. Equipments of every kind in the ports of the United States, of privateers of
^ powers at war with France, are deemed unlawful.

'* 7. Equipments of vessels in the ports of the United States, which are of a nature
^My adapted to war, are deemed unlawful ; except those stranded or wrecked, as
^Q&tioned in the eighteenth article of our treaty with France, the sixteenth of our
^'^ty with the United Netherlands, the ninth of our treaty with Prussia, and,
^xoept those mentioned in the nineteenth article of our treaty with France, the seven-
^Qth of our treaty with the United Netherlands, the eighteenth of our treaty with

*' 8. Vessels of either of the parties not armed, or armed previous to their coming
"^ the ports of the United States, which shall not have infringed any of the fore-
toiag rales, may lawfully engage or enlist their own subjects or citizens, not being
^bitantsof the United States, except privateers of the powers at war with France,
^ except those vessels which shall have taiade prise, etc.

553

;96.]

NEUTRALITY.

'The foregoing rules having been considered by as at several meetings, and

{ now nnanimonsly approved, they are submitted to the President of the TTnf -t^ri^

»tes.

« Thomas Jrfferson.

^'Alexandsr Hamiltobv'^

"Henrt Knox.

"Edmund Randolph.**

The above, which is given in 10 Watthiugtou's Writings (by Sparks), 548, «a^ ^
cabinet resolution, appears in 1 Am. St. Pap., For.ReL, 140, as an app^^^^.
age to Mr. Hamilton's Treasury Circalar of Aug. 4, 1793. In 10 Wasb.td^.
ton's Writings, 546, the serious mistake is made of patting "lawful^ A>r
'^anlawfal" at the end of clause "6.''

** restitution of pbizb8.

''August 5, 179$.

" That the minister of the French Republic be informed that the President
siders the United States bound, pursuant to positive assurances given in confaniL^
to the laws of neutrality, to effectuate the restoration of, or to make compensatioD
prises, which shall have been made of any of the parties at war with France, so
quent to the 5th day of June la«t, by privateers fitted out of their ports.

*' That it is consequently expected that he will cause restitution to be made of
prizes taken and brought into our ports subsequent to the above-mentioned day
such privateers, in defect of which, the President considers it as incumbent npont
United States to indemnify the owners of those prizes, the indemnification to he
bnrsed by the French nation.

"That besides taking efficacious measures to prevent the future fitting out of pi
vateen in the ports of the United States, they will not give asylum therein to u
which shall have been at any time so fitted out, and will cause restitution of
such prizes as shall be hereafter brought within their ports by any of the said priv
teers.

"That instructions be sent to the respective governors in conformity to the abo
communicHtion.

" The foregoing having been duly considered, and being unanimously approvi
they are submitted to the President of the United States.

"Thobcas Jeffbrson.
"AI.1EXANDBR Hamilton.
"Hknrt Knox.
"Edmund Randolph."
10 Washington's Writings, 546. See App., Vol. Ill, ( 396.
As to construction of French treaty in this relation, see 9upra, $ 148.

'Sat

<< The original arming and equipping of vessels in the ports of t
United States by any of the belligerent parties for military serri*:^^
offensive or defensive, is deemed anlawfnl.

" Equipments of merchant vessels by either of the belligerent partm ^
in the ports of the United States, pai-ely for the accommodation of th^^JO
as sach, is deemed lawfal.

"Equipments in the ports of tbe United States of vessels-ofwar io
the immediate service of the Government of any of the belligerent p^^
ties, which, if done to other vessels would be of a doubtful natnro ^
being applicable either to commerce or war, are deemed lawful.

" Equipments of vessels in the ports of the United States, which Bre
of a nature solely adapted to war, are deemed unlawful, except tha00
stranded or wrecked," etc.

Mr. Hamilton's Treasury circular of Aug. 4, 1793. 1 Am. St. Pap. (Fdr RsLX ^^

564

^F. XXI.] ISSUING OF BELLIGERENT CRUISERS. [$ 396.

n Mr. Jefferson's letter, when Secretary of State, to Mr. Genet, of
gost 7, 1793, he states that << the President considers the United
•tea as bound, pursuant to the laws of neutrality, to effectuate the res-
Ation of, or to make compensation for prizes, which shall have been
de of any of the parties at war with France, subsequent to the 5th
r of June last, by privateers fitted out of our ports.''

1 Wait's, St. Pap., 136 ; 1 Am. St. Pap. (For. Rel.), 167.

?he opening in a neutral port of the port-holes of a belligerent cruiser,
Lch had been previously closed, is ^' as much an augmentation of the
36 of the said vessel as if the port-holes were now to be cut for the
t time."

Deciaion of President Washington as given by Mr. Randolph, Seo. of State, to
Mr. Fauchet, Jnne 13, 1795. MSS. Notes, For. Leg.

^ We can never allow one belligerent to buy and fit out vessels here,
t>e manned with his own people, and probably act against the other."

Mr. Jefferson, President, to the Seo. of State, Ang. 12, 1S08. 5 Jeff. Works, 339.

^ Having communicated to you verbally the information asked for by
ir letter of the Ist instant, except so (ar as relates to the last in-
Liy it contains, I have now the honor to state that the provisions
^med necessary to make the laws effectual against fitting out armed
isels in our ports for the purpose of hostile cruising seem to be —
^ 1. That they should be laid under bond not to violate the treaties
the United States or the obligations of the United States under the
r of nations in all cases where there is reason to suspect such a pur-
le on foot, including the cases of vessels taking on board arms and
initious of war, applicable to the equipment and armament of such
ssels subsequent to their departure.

* 2. To invest the collectors, or other revenue officers where there are
collectors, with power to seize and detain vessels under circum-
kiices indicating strong presumption of an intended breach of the
^] the detention to take place until the order of the Executive, on a
1 representation of the facts had thereupon, can be obtained. The
itate book contains analogous powers to this above suggested. (See
rticolarly the eleventh section of the act of Congress of April 25,
08.)

'' The existing laws do not go to this extent. They do not authorize
e demand of security in any shape or any interposition od the part of
LQ magistracy as a preventive where there is reason to suspect au in-
ntion to commit the offense. They rest upon the general footing of
inishiDg the offense merely where if there be full evidence of the actual
Brpetration of the crime, the party is handed over, after the trial, to
le penalty denounced."

Mr. Monroe, Seo. of State, to Mr. Forsyth, Jan. 6, 1817. 4 Am. St. Pap. (For*
B6l.)« 103.

566

§ 396.] NEUTRALITY. [CHAP. XXL

Under the neatrality laws of the TTnited States a telligerent will not
be permitted to augment the force of his armed cralfers when in a port
of the United States.

Mr. Clay, Seo. of State, to Mr. Rebello, Jaa. 29, 1828. MSB. Notes, For. Leg.

Same to same, Apr. 8, 1828 ; ibid,
AstoTigilance that will be deemed saffloient in such cases, see letter last cited,

and see ii^ra, $ 402.

<< The Government of the United States has taken no new resolution
to prevent vessels ander their flag sailing from their ports in a warlike
condition. The law on this subject has remained the same during the
last ten years. According to the provisions of the act of Congress,
every person is prohibited from fitting out and arming or augmenting
the force of any vessel within the limits of the United States to cruise
against the subjects, citizens, or property of any prince or state, colony,
district, or people with whom the United States are at peace. In in-
stances in which the sailing of armed vessels belonging wholly or in
part to citizens of the United States, which is allowed in certain cases
for self-protection against pirates or other unlawful aggressions, the
owners are required to give bond with sufficient sureties in double the
amount of the value of the vessel and cargo, prior to clearing, that it
shall not be employed by such owners to cruise against powers with
which the United States are at peace. And in other instances the
proper officers are authorized to detain any vessel manifestly built for
warlike purposes, and about to depart from the United States, the eargo
of which vessel shall principally consist of arms and ammunition of war
when the number of men shipped on board or other circumstances shall
indicate that such vessel is intended to be employed by the owners to
cruise or commit hostilities against friendly powers until the decisio
of the President thereon, or until the owners shall give bond and se
curity as previously required.'^

Same to same, May 1, 1828 ; ibid.

For a neutral to permit a belligerent vessel to be fitted out in
ports to cruise against the other belligerent is a gross breach of ne
trality.

Mr. Buchanan, Sec. of State, to Mr. Saanders, June 13, 1847. MSS. Inst., Spi

The Government of the United States will, under its own neutrality
acts, prevent war cruisers issuing from its ports to aid a belligere
contest with a friendly state.

Mr. Clayton, Seo. of State, to Baron Ton RoSnne, Apr. 10, 1849. MSS. Koi
German States. Same to same, Apr. 29, 1849. Ibid,

And it makes no difference in such case that the vessel wa^ mea
for defensive and not offensive operations.

/M<{.,May5, 1849.

<< Shortly after I had entered upon the discharge of the executive d'
ties, I was apprized that a war steamer belonging to the (German B

CHAP. XXI.] ISSUING OF BELLIGERENT CRUISERS. [$ 396.

pire was being fitted out in the harbor of New York, with the aid of
some of our naval officers rendered onder the permission of the late
Secretary of the Navy. This permission was granted daring an armis-
tice between that Empire and the Kingdom of Denmark, which had been
engaged in the Schleswig-Holstein war. Apprehensive that this act of
intervention on oar part might be viewed as a violation of oar neatral
obligations incnrred by the treaty with Denmark and of the provisions
of the act of Congress of the 20th of April, 1818, 1 directed that no far-
ther aid shoald be rendered by any agent or officer of the Navy, and I
' instracted the Secretary of State to apprize the minister of the German
Empire accredited to this Government of my determination to execnte
the law of the United States and to maintain the faith of treaties with
all nations. The correspondence which ensaed between the Depart-
ment of State and the minister of the German Empire is herewith laid
before yon. The ezecation of the law and the observance of the treatj^
were deemed by me to be dne to the honor of the coantry, as well a«
to the sacred obligations of the Gonstitntion. I shall not fail to parsae
the same coarse, shoald a similar case arise, with any other nation.
Having avowed the opinion, on taking the oath of office, that in dispntes
between conflicting foreign Governments it is oar interest, not less than
OUT duty, to remain strictly neatral, I shall not abandon it. Yon wO'
perceive from the correspondence sabmitte4 to yoa in connection with
this subject that the coarse adopted in this case has been properly re-
Ciaided by the belligerent powers interested in the matter."

President Taylor, First Annual Message, 1849.

'^Bnt oar municipal law, in accordance with the law of nations, per-
^liptorily forbids not only foreigners bat oar own citizens to fit out
^thia the United States a vessel to commit hostilities against any state
^th which the United States are at peace, or to increase the force of
^^y foreign armed vessel intended for snch hostilities against a fHendly
state,

** Whatever concern may have been felt by either of the belligerent
^^ers lest private armed crnisers or other vessels in the service of one
'^^ght be fitted oat in the ports of this coantry to depredate on the
^'■^perty of the other, all snch fears have proved to be utterly groand-
^^ Our citizens have been withheld from any such act or purpose by
^^^^ faith and by respect for the law."

President Pierce, Third Anuaal Message, 1855.

On the general question, see Brit, and For. St. Pap., 1864-^65, toI. 55.

^^%e proper authorities in New York will be instructed to detain gun-
^^t^ preparing to issue from that port, in violation of neutrality in the
^^test between Peru and Spain.

]lr.Fi0h, See. of State, to Mr. Freyre, Aug. 10, 1869. MSS. Notes, Pern.
As to withdrawal of this order on peace between Pern and Spain, see same t»
same, Deo. 8, I860.

56T

§ 396.] NEUTRALITY. [CHAP. XXI.

A vessel constructed in a United States port for a hostile attack on a
friendly sovereign will be arrested, under our neutrality laws, even
though she is not yet complete, and the intention is to send her to a
foreign port for completion.

Mr. Evarto, Seo. of State, to Mr. Sullivan, Feb. 21, 1878. MSS. Dom. Let. See

Mr. Evarts to BIr. Sherman, Jane 5, 1878; ibid,
Ab to rules of Treaty of Washington and Geneva tribunal, see infra, ( 402a.

The capture of a vessel of a country at peace with the United States,
made by a vessel fitted out in one of our ports, and commanded by one
of our citizens, is illegal, and if the captured vessel is brought within
our jurisdiction, the district courts, upon a libel for a tortious seizure,
may inquire into the facts, and decree restitution. And if a privateer,
duly commissioned by a belligerent, collude with a vessel so fitted out
and commanded, to cover her prizes and share with her their proceeds,
such collusion is a fraud on the law of nations, and the claim of the bel-
ligerent will be rejected.

Talbot V, Janson, 3 Dall., 133.

Under article 19 of the treaty with France of 1778 («ifpra, § 148) a
French privateer has a right to make repairs in our ports. The replace-
ment of her force is not an augmentation.

Moodie v. The Ship Phcsbe Anne, iltid., 319.

A neutral nation may, if so disposed, without a breach of her neutral
character, grant permission to both belligerents to equip their vessels-
of-war within her territory. But, without such permission, the subjects
of such belligerent power have no right to equip vessels-of-war, or t
increase or augment their force, either with arms or with men, witht
the territory of such neutral nation.

All captures made by means of such equipments are illegal in relatio
to such nation, and it is competent for her courts, in case the prizes
taken are brought infra prcdMiaj to order them to be restored.

Brig Alerta v. Bias Moran, 9 Cranch, 359.

If restitution be claimed on the ground that the capturing vessel b
augmented her force in the United States by enlisting men, it rests
the claimant to prove the enlistment ; and, this being done, upon
captors to prove that the persons enlisted were subjects or citizens
the prince or state under whose flag the cruiser sails, transiently with
the United States, and therefore subject to enlistment.

The EstreUa, 4 Wheat., 298; S. P., La Amistad de Rues, 5 iHd., 385.

An augmentation of the force of a foreign belligerent vessel in a
of the United States, we being neutral, by a substantial increase of
crew, is a breach of our neutrality.

Santissima Trinidad, 7 Wheat., 283.

QEkP. XXL] issuing OF BELLIGERENT CRUISERS. [§ 396.

Neither our manicipal law nor the law of nations forbids our citizens
from sending armed vessels, as well as munitions of war, to foreign
ports for sale.
ihid.

A oraiser, armed and manned in a United States port (we being at
the time neutral), and sailing from thence to a belligerent port with the
intent to depart on a cruise with the armament and crew obtained here,
violates our neutrality statutes by so departing and capturing belligerent
property; and her prizes coming into our jurisdiction will be restored.
While a bona ./Ide determination of her cruise for which the illegal arma-
ment was here obtained puts an end to her disability, a mere colorable
determination has no such effect.

The Gran Para, 7 Wheat., 471.

*' If this were to be admitted in such a case as this, the laws for the
preservation of our neutrality would be completely eluded, so far as
this enforcement depends on the restitution of prizes made in violation
of them. Vessels completely fitted in our ports for military operations
need only saU to a belligerent port, and there, after obtaining a com-
<i^^is8ioD, go through the ceremony of discharging and re-enlisting their
crew to become perfectly legitimate cruisers, purified from every taint
^^ntracted at the place where all their real force and capacity for an-
^ojance was acquired. This would indeed be a fraudulent neutrality,
disgraceful to our own Government, and of which no nation would be
tbe dape. It is impossible for a moment to disguise the facts, that the
^^^^8 and ammunition taken on board the Irresistible at Baltimore
^Qie taken for the purpose of being used on a cruise, and that the men
^bere enlisted, though engaged, in form, as for a commercial voyage,
^eie Dot so engaged in &ct. There was no commercial voyage, and no
iiicUvidual of the crew could believe that there was one."

MarshaU, C. J., ibid., 487.

If property captured in violation of our neutrality laws be found,
within our jurisdiction, in the hands of the master of the capturing
^Qssel, it will be restored, whether a condemnation or other change of
title has intervened or not.

The AzTOgante Baroelones, ibid,, 496 ; iupra, $ 329a.

Captures by vessels fitted out in the United States in violation of
^eutndity are held illegal when the property is brought within our
i^^riadiction.

The Fanny, 9 Wheat., 658.

Under the 3d section of the neutrality act of April 20, 1818, it is not
^C068sar}' that the vessel should be armed or in a condition to commit
"Utilities, on leaving the United States, in order to convict a party con-
^nied iu the enterprise who is indicted for being concerned in fitting

559

§ 396.] NEUTRALITY. [CHAP

oat a Teasel with intent that she shoald be employed in the servic
foreign province or state at peace with the United States. It is
cient if the defendant was knowingly concerned in fitting ont or ai
the vessel with intent as aforesaid, though the intent shoald app
have been defeated after the vessel sailed. Bat if the defendant 1:
no fixed intention when the vessel sailed to employ her as a priv
but only a wish so to employ her if he conld obtain fands on her a
at a foreign port, for the purpose of arming her, he ought not to b<
victed.

U. S. «. Qninoy, 6 Pet., 445.

An American built vessel, the Hector, having been fitted out anc
missioned at Charleston by Genet as the French privateer Yain
de la Bastille, went to sea and then returned to the United States
was detained and dismantled by the United States Government ai
mington, K 0. She then sailed thence unarmed as a foreign \
but was equipped and commissioned at Hay ti by the French autho
She went again to sea, and brought a prize, the Betsey, into Char]
in 1795. It was held, that, under the circumstances, the fitting o
aid of which the capture was made, was not in contravention of la

The Betsey, Bee, 67.

A French privateer having come to Charleston unarmed, leave t<
her was asked and refused. She returned^ after a cruise, with
mounted and a prize. The court restored the prize, the ground
that she did take on board the guns at Charleston to be used as h
mament, and that the act was an illegal augmentation of force.

The Nancy, ibid., 73.

It was held that the repairing the waist, and cutting two porti
for guns at a port of the United States, of a vessel fitted out and
missioned as a vessel-of-war when she entered, does not by itseli
stitute an augmenting of her force within the meaning of the act <
June, 1794.

The Brothers, ibid., 76.

A prize was restored on the ground that the French privateer y
took it had before the capture augmented her force by taking in
tional gnns at a port of the United States.

The Betsey Cathcart, Bee, 292 ; Dana's Wheaton, $ 439, note 215.

Frequent complaints were made in 1815-^17, by Abb6 Oorre^
Portuguese minister at Washington, of infractions of neutrality i
contest then raging between Portugal and her South American col
(See Mr. Correa to Mr. Monroe, Dec. 20, 1816. MSS. Notes, PortUj
Legation.) President Madison sent a special message on the si
to Congress, and the result was the passage, on March 3, 1817, of f
limited to two years, which was made permanent by the. act of
Aprily 1818, which act repealed the act of 1794^ and renewed its pj

560

CHAP. XXI.] I^UING OF BELLIGERENT CRUISERS. [§ 396.

ious with additional powers of siiinmary interfercDce. The clauses so
added required the owners or consignees of any armed vesg^il to give
boDd in sufficient sureties in double the value of the vessel, cargo, and
armament, that it should not be employed by them to cruise or commit
hostilities against any state or people with whom the United States were
at peace; and authorized the revenue officers to detain any vessel about
to depart under circumstances rendering it probable that she would be so
emplojed. (§§ 10, 11, act 20th April, 1818.) It being suggested by the
Spanish minister that the South American provinces in revolt, and not
recognized as independent, might not be included in the word ^' state,"
the words " colony, district, or people," were added.

Dana's Wheaton, $ 439, note 215.

Denmark having remonstrated, in 1848, on the building and fitting
cat in New York, in that year, during an armistice in the hostilities be-
tween Denmark and Germany, of a steamer at New York to be used as a
shipof-war by Germany, the German minister replied that the vessel
bad been ordered without regard to the war. She was to be used, it
was alleged, for defensive purposes during the armistice. The United
States Government, however, refused to permit the vessel to proceed
to Germany until security had been given, under the statute, that she
fihoQld not be employed as a vessel of war during hostilities then about
to recommence. ^

Dana's Wheaton, $ 4'Sd, note 215; citing Annaaire des Deaz.MondeSy 1852-'53,
485. £x. Doc. 5, Slst Cong. 5 Op., 42, Toacey, 1846.

In 1855 the British consul at Kew York applied to this Department for
the arrest of a ship called the Maury, fitting out there^ which, he claimed,
was intended to' cruise under the Eussian flag against dreat Britain.
The United States district attorney at N"ew York libeled the vessel and
placed her in the custody of the marshal. After a full examination, the
British consul was satisfied and withdrew the complaint.

Dana's Wheaton, $ 439, note 215; citing Senate £z. Doc. 238, 34th Cong.

The case of the Meteor, which has been the subject of much dis-

cugsion in this relation, is reported in brief, in 1 Am. Law Eev., 401.

j^ccording to this report, the Meteor was built in the United States in

^^t during the war then pending between Chili and Spain, and sold

^0 the Chilian Government, without armament, and then, it was alleged,

^iKimissioned, when in the United States, as a Chilian privateer. She

.^^ libeled in New York and seized January 23, 1866 ; and onthehear-

'^S before Judge Betts it was maintained by the claimant to <' be no

^fi'euse (under the act of 1818) to issne a commission within the United

^^^tes for a vessel fitted and equipped to cruise or commit hostilities,

*|^d intended to cruise and commit hostilities, so long as such vessel was

S|^t armed at the time, and was not intended to be armed within the

'^^ited States, although it could be shown that a clear intent existed,

^^ the part of the person issuing or delivering the commission, that the

T^^^l should receive her armament the moment she should be beyond

l^B jurisdiction of the United States." It waa said, however, by Judge

^^tts that " the court cannot give any such construction to the statute.

^^ch a constrnction was repudiated by the Supreme Court. • • ♦

^he Meteor, although not completely fitted out for military operations,

^^ a vessel-of-war, and not a vessel of commerce. She has in no man-

8. Mis. 162— VOL, in 36 561

§396.] NE^^TRALITT. * [CHAP. IIXI

ner been altered from a vessel-of-war so as to fit her to be only a mer
chautman and so as to unfit her to be a vessel-of-war. It needed odI}
that she should reach a point beyond the jurisdiction of the United
States, and there have her armament and ammunition put on board ol
her, to become an armed cruiser of the Chilian Government against the
Government of Spain. ♦ • • To say that the neutrality laws of th«
United States have never prohibited the sale of a vessel-of-war as an
article of commerce, is merely to say that they have not prohibited the
fitting out and arming, or the attempting to fit out and arm, or the far-
nishing or fitting out or arming, of a vessel, within the limits of the
United States, provided the unlawful and prohibited intent did Dot
exist." The court relied as authority on Dana's Wheaton, 562, 663, note
215, where it is said that '<au American merchant may build and fnll,^
arm a vessel and supply her with stores, and offer her for sale in oai
own market. If he does any acts, as an agent or servant of a belliger
ent, or in pursuance of an arrangement or understanding with a belliger
ent, that she shall be employed in hostilities when sold, he is gmlty
He may, without violating our law, send out such a vessel, so equipped
under the flag and papers of his own country, with no more force o'
crew than is suitable for navigation, with no right to resist search oi
seizure, and to take the chances of capture as contraband merchandise
of blockade, and of a market in a belligerent port. In such easethi
extent and character of the equipment is as immaterial as in the othet
class of cases. The intent is all. The act is open to great saspicioni
and abuse, and the line may often be scarcely traceable; yet the prin
ciple Is clear enough. Is the intent one to prepare an article of contra
band merchandise, to be sent to the market of a belligerent, subject U
the chances of capture and of the market! Or, on the other hand, is ii
to fit out a vessel which shall leave our port to cruise, immediately oi
ultimately, against the commerce of a friendly nation! The latter w<
are bound to prevent. The former the belligerent must prevent'
Judge Betts then proceeded to say : << The evidence in the present case
leaves no rational doubt that what was done here in respect to the
Meteor was done with the intent that she should be employed in hostile
operations in favor of Chili against Spain ; and that what was done bj
her owners towards dispatching her from the United States was done
in pursuance of an arrangement with the authorized agents of Ohilifoi
her sale to that Government, and for her employment in hostiliti^
against Spain, and that the case is not one of a bona fide oommereiai
dealing in contraband of war. With these views, there must be a d&
cree condemning and forfeiting the property under seizure, in acoori
ance with the prayer of the libel.'^

See, for a further statement of Jadge Beits' mling, 2 Halleck's Int. U^
(Baker's ed.}»ld9.

Judge Betts' decree was reversed in the circuit court, where the fol
lowing opinion was delivered by Mr. Justice Nelson :

<< This is an appeal in admiralty from a decree of condemnation in <

libel of information for the violation of the neutrality laws of the Unit^

States. We have examined the pleadings and proofs in the case, fttt«

have been unable to concur in the judgment of the court below, bntfrotf

the pressure of other business have not found time to write out at l^rg^

the grounds and reasons for the opinion arrived at. We mu8t> there

662

CHAP. XXI.] ISSUING OF BELLIGERENT CRUISERS. [§ 396.

fore, for the present, be content in the statement of our conclusions in
the matter :

^< L Although negotiations were commenced and carried on between
the owners of the Meteor and agents of the GoTernment of Chili, for
the sale of her to the latter, with the knowledge that she would be em-
ployed against the Government of Spain, with which Chili was at war,
yet these negotiations failed and came to an end from the inability
of the agents to raise the amount of the purchase-money demanded ;
aud if the sale of the vessel, in its then condition and equipment, to
the Chilian Government would have been a violation of our neutrality
laws, of which it is unnecessary to express any opinion, the termination
of the negotiation put an end to this ground of complaint.

^'2. The furnishing of the vessel with coal and provisions for a voy-
age to Panama, or some other port of South America, and the purpose
of the owners to send her thither, in our judgment, was not in pur-
saance of an agreement or understanding with the agents of the Chilian
OoTerDment, but for the purpose and design of finding a market for
her, and that the owners were free to sell her on her arrival there to
the Government of Chili or of Spain, or of any other Government or
person with whom they might be able to negotiate a sale.

*^3. The witnesses chiefly relied on to implicate the owners in the
negotiations with the agents of the Chilian Government, with a view
and intent of fitting out and equipping the vessel to be employed in the
war with Spain, are persons who had volunteered to negotiate on be-
halt'of the agents with the owners in expectation of large commissions
in the event of a sale, or persons in the expectation of employment in
some situation in the command of the vessel, and very clearly manifest
tiieir disappointment and chagrin at the failure of the negotiations, and
whose testimony is to be examined with considerable distrust and sus-
picion. We are not satisfied that a case is made out, upon the proofs,
of a violation of the neutrality laws of the United States, and must,
therefore, reverse the decree below, and enter a decree dismissing the
libeL»

An appeal was taken by the Government from the decision of the
tiicoit court to the Supreme Court of the United States, but was not
I^oeecuted to a hearing, being dismissed by consent November 9,
1868.

Report of the OMe of the steamship Meteor, Baloh, 201 , 202. Little, Brown &,
Co., 1869.

In a criticism on Judge Betts' ruling, in the Korth American Beview
for October, 1866 (vol. 103, p. 188), we have the following :

*' It has been by many supposed that the decision in this Meteor case
^U be of great weight and importance as a precedent in the question
of the Alabama and other Confederate vessels, now pending between
tlii8 country and Great Britain, and the suspicion has been intimated
by Bome that the law was a little warped by the learned judge with the

563

§ 396.] NEUTRALITY. [CHAP. XXL

charitable intent of aiding Mr, Seward in the controversy. To justify
either of these ideas, it is of coarse primarily necessary that the cases
shonld be at least sabstantially parallel. That they are far from being
so may be briefly shown. The Meteor was built as a purely commercial
enterprise to be sent to a foreign land, there to take her chance of find-
ing a market, subject to the risk of capture on the v^ay, to be followed
by confiscation as contraband of war, and to the further risk, shoold
she reach her destination in safety, of finding no market in case the war
should be drawing to a close, or terms could not be agreed on ; liable^
also, to be sold to any other bidder who would pay a 1:]^tter price. She
differed nowise from any other contraband merchandise, ejtcept in the
wholly insignificant fact that instead of being of such a nature as to
require to be carried she was able to move herself. She was simply a
mercantile speculation in contraband merchandise, which is of all men
and nations confessedly and avowedly legitimate. The Alabama pre-
sents no one of these characteristics. • • • The question then be-
ing, as Mr. Dana says, of intent^ the vital difference is readily distin-
guishable. The English builders had assured their trade before they
entered upon the undertaking ; the American merchants only had in
view a quite probable purchaser. The former were not free to dispose
of their ship to any person who might offer her price, for she was be-
spoken ; the latter would have been very glad to have received and
closed with a fair offer from any source. In short, the action of the
former betrays clearly the intent^ the element of illegality, but how the
action of the latter can have been regarded in the same light we most
confess ourselves unable to see. Where, then, is the similarity t Or
why should it have been conceived necessary to sacrifice the Meteor, to
overrule old and good law, to create a new necessity requiring to be
met by new statutes of untried efficiency, simply for the purpose of
creating a precedent which is after all no precedentT ^

The captain and mate of a United States vessel, if they, knowin^^
the character of their cargo and its intended purpose, transport arms
from a port within the United States to a foreign port, together with
men and stores to be used in a military expedition against a people at
I)eace with the United States, are guilty of a misdemeanor under Be-
vised Statutes, section 5286.

U. S. V, Rand, 17 Fed. Rep., 142, £. Dist. of Pa., 1883.

In United States v. The Mary Anne Hogan (18 Fed. Bep., 529) it was
held that an expedition organized in parts in one of our ports, to be
united at a common rendezvous at sea, for the purpose of aiding one of
the belligerents in a foreign war, this purpose being plainly shown, is
within the prohibitions of section 5283, Eevised Statutes.

The fact that a steamer carries to foreign insurgents arms for th^i^
use, with false manifests, and accompanied by an agent for the insor-
gents, is, with other circumstances, probable cause for the arreflt^
though on trial the vessel was discharged,

U. S. V. City of Mexico, 25 Fed. Rep., 924.

Whether a neutral sovereign is bound to pursue beyond his territoriftt
waters a belligerent vessel fitted out in such waters in violation of bi^

6U4

CHAP. XXI J ISSUING OF BELLIGERENT CRUISERS. [§ 396.

ueutrality, Las been mach discassed. In La Amistad de Rues, 6 Wheat.,
390, it was said by Story, J., that when a neutral nation is "called upon
by either of the belligerents to act in such cases, all that justice seems to
require is that the neutral nation should fairly execute its own laws and
give no asylum to the property captured." (See further as to this casa
infraj § 400.) On the other hand, it is said by Story, J., in the Mari-
anna Flora, 11 Wheat., 42, that "it is true that it has been held in the
courts of this country that American ships, offending against our laws,
and foreign ships, in like manner offending withi^ our jurisdiction, may,
afterwards, be pursued and seized upon the ocean, and rightfully be
brought into our courts for adjudication. This, however, has never
beeu supposed to draw after it any right of visitation or search. The
party in such case seizes at his peril. If he establishes the forfeiture
be is justified. If he fails he must make full compensation in damages."
Sir W. Harcourt, in criticising these rulings in Historicus (p. 158) says:
^'Tbe principle to be deduced from this decision (La Amistad) is that
the neutral power cannot be called upon by the injured belligerent to
grant him any remedy beyond that whch may be exercised over prop-
erty or persons who are at the time within the neutral jurisdiction. It
is true that in the celebrated case of the Portuguese expedition to Ter-
ceira, it was contended by the Duke of Wellington's government that
an expedition having fraudulently evaded the English jurisdiction and
started from these shores in violation of the enlistment act, the English
Government was entitled to pursue and seize the ships beyond the juris-
dictiou; and though this doctrine receives some countenance from the
^ta of the court in the American case of the Marianna Flora (11 Wheat.,
^), nevertheless this doctrine was vehemently, and it is generally
thought successfully, controverted by the minority, of whom Sir J.
Mackintosh and the late Dr. Joseph Phillimore and Mr. Huskisson were
tbe principal spokesmen. ( Vide Hansard, vol. xxiv, new series.) At all
events, I think' it is quite clear that, whether such a right exists or not,
on the part of a neutral, it is not a duty on his part which the belliger-
ent can call upon him to enforce."

As to restrlotions in use of neutral waters by belligerents, see infra, $ 399 ;

Buprti, i 27.
As to arrests outside of three-mile limit, see Bupra^ $ 32.

If a vessel befitted out, furnished, or armed within the waters of the
United Stales, and there be sufficient grounds for believing that it is
one with intent to employ it in the service of any foreign prince or
Ute, to cruise or commit hostilities upon the subjects or property of
Mother foreign prince or state with whom the United States are at
«ace, it is unlawful under the act of Oongress. >

1 Op., 191, Bosh, 1816.

If an English vessel be seeking an armament with the latter purpose,
* will be unlawful. But there is no law to prohibit her taking in arms
f military stores, in the way of trade, or for necessary self-defense.

Ibid.

The building of vessels in ISew York for the Mexican Government,
hiie at war with Texas, to be equipped at New York as war vessels

565

§ 396 ] NEUTRALITY. [CHAP. XXL

and there pla<2ed under the cojitrol of the Mexican Government, was a
violation of the act of 1818.

3 Op., 738, Legar^, 1841.

The object of the act of 1818 was to prevent all equipping of vessels-
of- war in our ports for a foreign power actually engaged in hostilities
with a nation with which the United States are at p^ace, knowing the
purpose for which they are to be employed. Where, however, the ves-
sel, though to be delivered to a belligerent, was not to be transferred
within the jurisdiction of the United States, was to be sent out of port un-
armed, and was to continue under the control of our own citizens, ever7
precaution being taken to insure her paci&c conduct on the high seas,
it was advised that she be permitted to sail, bonds having first been
given, under section 10 of the act of 1818, that she should not be em-
ployed to cruise or commit hostilities, etc.

Ihid.

The repair of Mexican war steamers in the port of New York, together
with the augmentation of their force by adding to the number of their
guns, etc., is a violation of the act of 1818. But the repair of their bot-
toms, copper, etc., does not constitute an increase or augmentation of
force within the meaning of the act.

4 Op., 336, Nelson^ 1^4.

The fitting out of a war vessel of the German Oovernment in the porc
New York, while a state of war exists between that Government and
Denmark, such vessel being calculated to cruise and commit hostilities
against Denmark, its property, or subjects, is contrary to the act of
1818. The fact that the vessel was to repair to Bremerhaven, there to
await orders, made no difference, as any intent, ultimate or prozimatey
to commit hostilities is violation of the act.

5 Op., 92, JohnsoD, 1849.

" The effects of a violation of neutrality committed by means of the
construction, equipment, and armament of a vessel are not done a^^S
with by any commission which the Government of the belligerent poveff
benefited by the violation of neutrality, may afterward have granted to
that vessel; and the ultimate step by which the offense is complete^I
cannot be admissible as a ground for the absolution of the offender, nor
can the consummation of his fraud become the means of establishing
his innocence. The privilege of extra-territoriality, accorded to vessels-
of- war, has been admitted into the law of nations, not as an absolat^
right, but solely as a proceeding founded on the principle of courtesy ao^
mutual deference between different nations, and, therefore, can nerer
be appealed to for the protection of acts done in violation of neutrality-
Award of Geneva tribunal. 4 Pap. Rel. Treat, of Wash., 10, 11. Infrm, i ^^^^

CHAP. XXL] issuing OF BELLIGERENT CRUISERS. [§ 396.

Hi is an offense by the law of nations for a sovereign to permit the
issae from his ports of a man-of-war so commissioned, when this might
be prevented by the exercise of proper care and diligence. It may be
said that between selling, by sabjects of a neatral state, of armed ships
to a belligerent, which is not forbidden by the law of nations, and fit-
ting oat by individuals of a craiser commissioned and armed to serve
such belligerent, which is forbidden, there is no perceptible distinction.
Bat between the sale of ships and of munitions of war, and the fitting
out of a craiser commissioned or to be commissioned for belligerent par-
poses, there is as real a difference as between permitting individuals,
thongh armed, to emigrate to a belligerent country, and permitting the
enlistment of soldiers to serve such belligerent. To prevent the sale of
ships or of munitions of war to a belligerent, would, as we have seen,
inflict a serious injury on commerce, as well as make countries which
do not produce iron and other essentials of iron-clads, and munitions
of war, victims of a country by which these staples are prodnced. But
this argument does not apply to the fitting out and manning of cruisers
and permitting a neutral port to be made the basis fh)m which such
cruisers go forth commissioned by one belligerent to destroy the ship-
ping of the otter belligerent at sea. The imperfect performance by
the British Government of its duties in this respect, provoked a contro-
versy with the United States, which led to the Treaty of Washington,
above noticed. It is true that, as will be seen, the rules laid down in
the Treaty of Washington are not to be regarded as incorporated in in-
ternational law, or as forming interpretations of that law by which the
parties are bound. But while this is the case, the whole procednre
most be regarded as ratifying the general principle above stated, that
it is a breach of international law for a neutral sovereign to permit the
issaiug from his ports of cruisers fitted out, commissioned, and manned
for belligerent warfare. Infra^ § 402a.

^^But a neutral country may, without breach of neutrality, permit both
belligerents to equip vessels in its ports. Even without any previoas
stipulation with either party, the ports of a neutral nation may be closed
or kept open to the prizes of both. (Mr. Lawrence, North Am. Rev.,
July, 1878, p. 25.)

^^The question is discussed by Sir W. Harcourt (Historicus), Int.
I^w, 151 ; in Bernard on British Neutrality, etc., London, 1870, and
inBemis on American Neatrality, Boston, 1866. It was argaed with
Ifreat research in the Alexandra (Attorney-General v. Sillem), London,
1863, and in The Meteor, Boston (Little, Brown & Co.), 1869. (See
Holmes' Kent, i, 124, and 3 Am. Law Kev., 234.)

"In the Alexandra case f see pamph. rep.) the applicability of the for-
eign enlistment act to such cases was fully discussed. (See notice in
^ard on British Neutrality, etc.) The arguments on the motion to
discharge the rule are given in Atty. Gen. v. Sillem, 2 Hurl. & C, 431.

"^The direct logical conclasions,' says Mr. Hall (International Law,
Oxford, 1880, § 225), 'to be obtained from the ground principles of
iieatrality, go no fnrthet than to prohibit the issue from neutral waters
ofavressel provided with a belligerent commission or belonging to a
l^Uigerent, and able to inflict damage on his enemy. ^ •• • On the
other hand, it is fully recognized that a vessel completely armed, and
in every respect fitted the moment it receives its crew to act as a uian-
ofwar, is a proper subject of commerce. There is nothing to present

567

^ 396.] NEUTRALITY. [CHAP. XXI.

its neutral possessor from selling it, and undertaking to deliver it to
the belligerent, either in tbe neutral port or in tbat of the purchaser,
subject to the right of the other belligerent to seize it as contraband if
he meets it on the high seas or within his enemy's waters.'

'^ ' The existing law, according to the summary of it given by Chancel-
lor Kent (Com., i, 128) and adopted by Wheaton (Lawrence's Wheaton,
729), declares it to be a misdemeanor for any person within the juris-
diction of the United States to augment the forcie of any armed vessel
belonging to one foreign power at war with another power with whom
they are at peace ; or to hire or enlist troops or seamen for foreign mil-
itary or naval service, or to be concerned in fitting out any vessel to
cruise or commit hostilities in foreign service against a nation at peace
with them ; and the vessel in this latter case is made subject to forfeit-
ure. The l?resident is also authorized to employ force to compel any
foreign vessel to depart, which by the law of nations or treaties ought
not to remain within the United States, and to employ generally the pub-
lic force in enforcing the duties of neutrality prescribed by law. (Re-
vised Statutes, §§ 1033 ff? Note by Mr. Lawrence in Whart. Orim,
Law, 8th ed., § 1908.)

" In the Santissima Trinidad, 7 Wheat., 283, Judge Story, giving the
opinion of the court, maintained that the sale of armed sbips-of war to
belligerents by neutrals was never held unlawful in the United States.
< There is nothing in oar laws,' he said, < or in the law of nations, that^
forbids our citizens from sending armed vessels as well as munitions o^
war to foreign ports for sale.' "

Whart. Com. Am. Law, $ 249.

<<Mr. Baron Channel!, in the case of the Alexandra, said: *Thg»^
foreign enlistment act, particularly the seventh section, is very.ioM.^
perfectly worded. There is no doubt that it wa« in a groat measiir^^,
but with what appeared to me very important variations, penned fror^Ki
an act of the United States, passed in Congress in 1792, and re-enactc ^1
in 1818.' This vessel was built at Liverpool, nominally for Frazer, Ttok — i.
holnr & Co. She was, after being launched, immediately taken to a

public dock for completion. According to the evidence at the trial, si le

was apparently built for war, but not for commerce, but might ha^Be
been used as a yacht. At the trial, which took place before the ch^^ef
baron of the court of exchequer, on an information by the attorn^E^y-
general, the jury found for the defendants. The question was left to C he
jury by the chief baron as follows: *Was there any intention that in
the port of Liverpool, or in any other port, she should be either equipp^^sd,
furnished, fitted out, or armed with the intention of taking part in a~ ny
contest? If you think the object was to equip, furnish, fit out, or a^K=rm

that vessel at Liverpool, then that is a suflacient matter. But if 3f ^

think the object really was to build a ship in obedience to an order a^ — nd
in compliance with a contract, leaving to those who bought it to ma-^^^®
what use they thought fit of it, then it appears to me that the forei P^
enlistment act has not in any degree been broken.' (The Neutralz" i^f
of Great Britain During the American Civil War, Montague Bema=:::^>
ch. xiii, 355.)* The arguments on the motion to discharge the rule ^^■'^
in Attorney-General v. Sillem, 2 Hurl & C, 431.

"Contrary to the course of the United States, in confiding theer:^^
cution of her neutrality acts, including that of 1818, to the admira-^'O^
courts, the English act of 1819 gave jurisdiction to the common-I^*''
courts; and the case of the Alexandra, which was formally decidecS ^

568

CHAP. XXI. J PASSAGE OF BELLIGERENT TROOPS. [§ 397.

farorof the defendant, though the opinions of the judges of the court
of exchequer were divided on a technical question of construstion, pro-
duced an irritation in the minds of the American people, which neither
the decision, in a contrary sense, of a Scotch court, nor even the inter
feience of the Government with the purchase of the Anglo-Chinese
sqaadron, supposed to be intended for the South, had any effect in al-
laying.

^^ So far back as January, 1867, a commission was appointed, consist-
iug of some of the most eminent English jurists, including Phillimore,
Twiss, and Vernon Harcourt, all high authorities on iutemational law,
and to which Mr. Abbott (now Lord Tenterden) was attached in the
capacity that he held to the high commission at Washington. The re-
salt of their labors was embodied in the* act of 9th of August, 1870, the
passage of which was hastened by the Franco-Prussian war. This act
prohibits the building, or causing to be built, by any person within
Her Majesty's dominions any ship, with intent or knowledge of its
being employed in the military or naval service of any foreign state
at war with any friendly state ^ issuing or delivering any commission
for any such ship : equipping any such ship, or dispatching or causing
any such ship to oe dispatched for such purpdse. It is deserving of
notice that Mr. Vernon Harcourt dissented to that portion of the re-
port of the commissioners that applied to the prohibition of ship-build-
ing^. Jurisdiction in cases under the act is given to the court of ad-
miralty, which is not the least important amendment of the law."

Note by Mr. W. B. Lawrence to Whart. Crim. Law (9th ed.)» $ 1908.

(4) Or PA88AOE OF BELUOEREMT TBOOP8 OVER SOIL.

§397.

The Government of the United States will not at the request o'f a
foreign Government, intervene to prevent the transit to the country of
^Q latter x>ersons objectionable to it unless they form part of a hostile
Military expedition.

Mr. JeflfersoQ, Sec. of State, to the minister of France, Nov. 30, 1793. MSS.
Notes, For. Leg. 4 Jeff. Works^ 86.

^^ I transmit a copy of letters to this Department from the Secretary
^^ "War, of the 13th, 15th, and 16th instant, with their accompaniments.
'^he.T relate to a conflict between troops in the service of Diaz and other
f^ixes, supposed to be in the interests of Lerdo, on the Rio Grande fh)nt-
^^1*. It seems that the Diaz troops, after defeating and routing their
^Tersaries on Mexican soil, pursued them into Texas, where they again
attacked and dispersed them. This was a violation of the territory
^^ the United States which you will lose no time in remonstrating
Against.

*^ While it is deemed hardly probable that this unjustifiable invasion

^f American soil was made in obedience to any specific orders from the

Mexican capital, it is, nevertheless, a grave violation of international

W, which cannot for a moment be overlooked. You are instructed to

^1 the attention of the ofBcers of the defaoto Government with whom

56Q

^398.] NEUTRALITY. [CHAP. XXI

you are holding aaofficial iatercoarse to this case, aod to say that thi
Government of the United States will confidently expect a prompt dh
avowal of the act, with reparation for its consequences, and the punisl
ment of its perpetrators."

Mr. EvartSi Seo. of State, to Mr. Foster, Jane 21, 1677. MSS. Inst., Hex. ; Foi

Rel., 1877.
That this is a breach of neutrality, see Field's Int. Code, $ 971, and see iuprt

}} 11a, 13/.
As to permission to belligerent to transport troops, see correspondence in 4 Han

ilton's Works, Lodge's ed., 48 ff; and see, also, Mipra, $ 13, where the qaei

tion is farther discussed.

(5) Bound not to permit territory to be made the base oi* bblliokren

OPERATIONS.

398.

<^ It is the right of every nation to prohibit acts of sovereignty froi
being exercised by any other within its limits, and the duty of a nentis
nation to prohibit snch as wonld injure one of the warring powers."

Mr. Jefferson, Sec. of State, to Mr. Qenet, Jnne 5, 1793. 1 Am. St. Pap. (F«
Bel.), 150 ; 1 Wait's St. Pap., 80. Same to same, July 24, 1793. 1 Am. S
Pap. (For. Rel.), 166.

It is a principle of the law of nations that no belligerent can rightfuK
make use of the territory of a neutral state for belligerent purpose
without the consent of the neutral Government.

« 7 Op., 387, Cashing, 1855. See farther supra, $ 27 ; infraj $ 399.

When belligerent troops, in order to escape the other belligeren
take refuge in neutral territory, if they do not lay down their arms tim
should be compelled to do so by the neutral sovereign. In such c^
they are protected by the law of nations from the opposing belligere- :
This, it is true, is contested by Bynkershoek.

^' But this opinion of Bynkershoek is not supported by the pract
of nations, nor by writers on public law. Abreu, Valin, Emerig^
Yatte], Azuni, Sir William Scott, Martens, Phillimore, Manning, m^
other European writers maintain the sounder doctrine, that when tf
flying enemy has entered neutral territory he is placed immediat«^
under the protection of the neutral power, and that there is no exo«i
tion to the rule that every voluntary entrance into neutral territc^
with hostile purposes, is absolutely unlawful. Kent, Wheaton, St(^
and other American writers oppose the doctrine of Bynkershoek, i*
the Government of the United States has invariably claimed the ab^
lute inviolability of neutral territory."

2 HaUeck's Int. Law (Baker's ed.), 180. See tupra, $ 304.

The question how far it is a breach of nentfality to supply coal t^
belligerent has been already incidentally considered {supra^ § 369).
may be here stated, in connection with the present head, that it is '^
a breach of neutrality for a neutral state to permit the coaling
belligerent steamers in its ports to the same extent as it permits <
coaling of other foreign steamers resorting to its ports casually a9^

670

CHAP. XXI.] MISUSE OF TERRITORIAL WATERS. [§ 399.

without settled stations established for them. 'Sot is it a breach of
neutrality for a neutral state to permit the sale of coal to any extent
to a belligerent.' It would, however, be a breach of neutrality for a
fientral to permit a permanent depot or magazine to be opened on its
shores, on which a particular belligerent could depend for constant
sapplies. To require a neutral to shut up its ports so as to exclude
from coaling all belligerents, would expose a nation with ports as numer-
ous as those of the United States to an expense as great as would be
imposed by actual belligerency. It is on the belligerent, who goes to
war, not on the neutral, who desires to keep out of it, that should
be thrown expenses so enormous, and constitutional strains so severe
as those thus required. On the other hand, the breaking up of central
depots or magazines for the constant supply of particular belligerents
woald be within easy range of ordinary national police. Nor can there
be any charge of partiality made in allowing coaling with the limita-
tion, above stated, when the same privilege is granted to both belliger-
ents.

Whart. Crim. Law (dth ed.)» i 1908. Supra, i 369; ii^ra, $$ 399, 402a.

(6> 'SOK TO PERMIT BELUOBRBXT NAVAL OPERATIONS IN TERRITORIAL WATERS.

§^99.

^^ I inclose you also several memorials and letters which have passed
bet^ween the Executive and the ministers of France and England. These
^U develop to you the principles on which we are proceeding between
tlid belligerent powers. The decisions, being founded on what is con-
ceived to be rigorous justice, give dissatisfaction to both parties, and
pit>duce complaints from both. It is our duty, however, to persevere in
^Bm and to meet the consequences. You will observe that Mr. Ham-
n^ond proposes to refer to his court the determination of the President
. that the prizes taken by the Oitoyen Genet could not be given up ; the
basons for this are explained in the papers. Mr. Gtonet had stated
that she was manned by French citizens. Mr. Hammond had not
®^tecl to the contrary before the decision. Neither produced any proofs.
^^ Was therefore supposed that she was manned principally with French
citizens. After the decision Mr. Hammond denies the fact, but with-
out producing any proof. I am really unable to say how it was, but I
^lieve it to be certain that there were very few Americans. He says
the issuing the commission, etc., by Mr. G^net within our territory was
*^ infringement of our sovereignty 5 therefore, the proceeds of it should
^ given up to Great Britain. The infringement was a matter between
^^^ce and us. Had we insisted on any penalty or forfeiture by way of
^^tisfaction to our insulted rights, it would have belonged to us, not to
^ third party. As between Great Britain and us, considering all the
^^^Xiumstances explained in the papers, we deemed we did enough to
^tisfyher. We are moreover assured that it is the standing usage of
^^noe, perhaps, too, of other nations, in all wars, to lodge blank com-
missions with all their foreign consuls to be given to every vessel of

511

§ 399.] NEUTRALITY. [CHAP. XXL

their nation, merchant or armed, without which a merchant vesse] would
be punished as a pirate were she to take the smallest thing of the enemy
that should fall in her way. Indeed, the place of the delivery of a com •
mission is immaterial, as it may be sent by letter to any one. So it may
be delivered by hand to him anywhere; the place of aigruUtire by the
sovereign is the material thing. Were that to be done in any other
jurisdiction than his own, it might draw the validity of the act in ques-
tion."

Mr. Jefferson, Sec. of State, to Mr. Piuckney, June 14, 1793. MSS. Inst., Min-
isters.

<^ France, England, and all other nations have a right to cruise on
our coasts, a right not derived from our permission, but from the
law of nature. To render this more advantageous, France has secured
to herself by a treaty with us (as she has done also by a treaty with
Great Britain, in the event of a war with us or any other nation), two
special rights: (I) Admission for her prizes and privateers into our
ports. This, by the seventeenth and twenty-second articles, is secured
to her exclusively of her enemies, as \p done for her in the like case by
Great Britain, were her present war with us instead of Great Britain.
(2) Admission for her public vessels-of-war into our ports, in cases of
stress of weather, pirates, enemies, or other urgent necessity, to refresh,
victual, repair, etc. This is not exclusive. As, then, we are bound by
treaty to receive the public armed vessels of France, and are not bound
to exclude those of her enemies, the Executive has never denied the
same right of asylum in our ports to the public armed vessels of your
nation. They, as well as the French, are free to come to them in all cases
of stress of weather, piracies, enemies, or other urgent necessity, and to
refresh, victual, repair, etc. And so many are these urgent necessities to
vessels far from their own ports, that we have thought inquiries into the
nature as well as the degree of the necessities which drive them hither as
endless as they would be fruitless, and therefore have not made them.
And the rather because there is a third right, secured to neither by
treaty, but due to both on the principles of hospitality between friendly
nations, that of coming into our ports, not under the pressure of urgent
necessity^ but whenever their comfort or convenience induces them. Oxm
this ground, also, tha two nations are on a footing."

Mr. Jefferson, Sec. of State, to Mr. Hammond, Sept. 9, 1793. MSS. Notes, For*'
Leg. 4 Jeff. Works, 65.

A foreign sovereign who uses the hospitality of our ports as a bas*^
of operations for the purpose of sallying forth to harass our allies a^
well as our own citizens, may be called upon for reparation.

Mr. Randolph, Sec. of State, to Mr. Hammond, Apr. 13, 1795. MSS. Kote^ Fo^
Leg.

" As it is contrary to the law of nations that any of the belligere^^
powers should commit hostility on the waters which are subject to

572

CHAJP. XXI.] MISUSE OF TERRITORIAL WATERS. [§ 399.

exclnsive jurisdiction of the United States, so ought not the ships-of-
war l^elonging to any belligerent power to take a station in these waters •
in oi-der to carry on hostile expeditions from them."

3lr. Randolph, Seo. of State, circular to the governors, Apr. 16, 1795. MSS.
Dom. Let. This position is farther discussed in Mr. Randolph's letter to
Mr. Hammond, of Apr. 22, 179&. MSS. Notes, For. Leg. Supra, $$27/.

^' Since our last meeting the aspect of onr foreign relations has con-

sideirably changed. Our coasts have been infested and oar harbors

watolied by private armed vessels, some of them without commissions^

othex-s with those of legal form, but committing piratical acts beyond

the s)>nthority of their commissions. They have captured in the very
6Q tircknce of our harbors, as well as on the high seas, not only the vessels

of OUT fHends coming to trade with us, but our own also. They have

cAi^*x-ied them off under pretense of legal a<^udication, but not daring to

^Ppx^oach a court of justice, they hai^e plundered and sunk them by the

^^y y or in obscure places where no evidence could arise against them ;

ii^B'lt^reated the crews, and abandoned them in boats in the open sea or

on d esert shores, without food or covering. These enormities appearing

to l>^ unreached by any control of their sovereigns, I found it necessary

to equip a force to cruise within our own seas, to arrest all vessels of

these descriptions found hovering on our coast within the limits of the

O'Ulf* Stream, and to bring the offenders in Jor trial as pirates.

^^ 1?he same system of hovering on our coasts and harbors under color

^^ Peeking enemies has been also carried on by public armed ships, to

^^ Si^6at annoyance and oppression of our commerce. New principles,

^^Oy bave been interpolated into the law of nations, founded neither in

jUBtiee nor the usage or acknowledgment of nations. According to

the^Qy a belligerent takes to himself a commerce with his own enemy

^^eb he denies to a neutral on the ground of its aiding that enemy in

the ^^ar. But reason revolts at such an inconsistency, and the neutral

*^^^ng equal right with the belligerent to decide the question, the in-

^^est of our constituents and the duty of maintaining the authority of

'^^^^on, the only umpire between Just nations, impose on us the obliga-

^<>Tk of providing an effectual and determined opposition to a doctrine

^ ix^urious to the rights of peaceable nations. Indeed the confidence

^^ Ought to have in tilie justice of others still countenances the hope that

^ ^otmder view of those rights will of itself induce from every bellig-

^'^Xit a more correct observance of them."

President Jefferson. Fifth Annual Message, 1805.

^he invasion of neutral rights by an attack on one belligerent cruiser
^ Another on neutral waters is not condoned by the fact that the chase
^^ begun outside of the neutral line.

Mr. Madison, Seo. of State, to Mr. Monroe, Nov. 11, 1806. MSS. Inst., Ministers.

** AVhen a foreign territorial jurisdiction has been violated in the seiz-
^^ of an American vessel (by offtcers of the United States), and this

biz

§ 399.] NEUTRALITY. [CHAP. XXI

seizure has been the means of bringing her within reach of the proce»
of the court, it has been decided by our Si«preme Oourt, in affirmini
the condemnation of a vessel so seized, that the offense thereby com
mitted against the foreign power did not invalidate the proceedingi
against the vessel. (Ship Bichmond, 9 Granch, 102.)^

Mr. Buchanan, Sec. of State, letter to Committee of Claims, Mar. 4, 1846. MSS
Report Book.

The seizure of an American vessel by an American ship-of-war, withii
the jurisdiction of a foreign Chovemment, for an infringement of ou
revenue or navigation laws, is a violation of the territorial authority o
the foreign Government, though this is a matter of which such Oovern
ment alone can complain.

4 Op., 285, Nelson, 1843.

The pursuit by a belligerent cruiser of an enemy's ship within neutra
waters, and driving the latter ashore, is a violation of the law of nations

Mr. Seward, Sec. of State, to Mr. Tassara, May 21, 1862. MSS. Notes, Spain.

^^ I am directed by the President to ask you to give the following in
strnctions, explicitly, to the naval officers of the United States, namelj*

^^ Firstly, that under no circumstances will they seize any foreig
vessel within the waters of a friendly nation.

^' Secondly, that in no case are they authorized to chase and fire at
foreign vessel without showing their colors, giving her the customaa
preliminary notice of a desire to speak and visit her.

'^ Thirdly, that when this visit is made the vessel is not then to ■
seized without a search, carefully made, so far as to render it reasonate
to believe that she is engaged in carrying contraband of war to the m
surgents and to their ports, or otherwise violating the blockade, an
that if it shall appear that she is actually bound, and passing from o~
friendly or so-called neutral port to another, and not bound or proce^
ing to or from a port in the possession of the insurgents, then she cflB
not be lawfully seized ; and,

<^ Finally, that official seals, or locks, or fastenings of foreign auttu
ities are in no case nor on any pretext to be broken or parcels ooveim:
by them read by any naval authorities of the United States, but
bags or other things conveying such parcels, and duly sealed and f^
ened by foreign authorities, will be, in the discretion of the United 8ts^ ^
officer to whom they may come, delivered to the consul, commands^
naval officer, or legation of the foreign Government to be opened, uf
the understanding that whatever is contraband or important as evide^^
concerning the character of a captured vessel, will be remitted to ^
said court or to the Secretary of State at Washington, or such s
bags or parcels may be at once forwarded to this Department to the
that the proper authorities of the foreign Gk)vernment may receive
without delay."

Mr. Seward, Seo. of State, to Mr. Welles, Aug. 8, 1302. MSS. Dom. Let

671

CHAP. XXI.] ABUSE OF TERRITORIAL WATERS. [§ 399.

The capture of the Florida, a Confederate craiser, by the United

Btates war steamer Wachusett, in the port of Bahia, ^'wasannnaathor-

ized, unlawful^ and indefensible exercise of the naval force of the United

States within a foreign country, in defiance of its established and duly

recognized G-overnment," and as snch is entitled to reparation. It was

held, however, that to this might be set off the damages to the United

States arising from Brazil giving asylum and succor to the Florida,

which the United States did not regard as a belligerent cruiser. But

it was admitted that '^ it does not belong to the captains of the ships-of-

war of the United States, or to the commanders of their armies, or to

toeir vessels residing in foreign parts, acting without the authority of

Congress and without such executive direction, and choosing their own

^nsMiner and occasion, to redress the wrongs of the country.'' The crew

of the Florida were released, being unlawfully captured. The Florida

'^^-s not restored, because, on her way to port, she sunk from " a leak

^^ hich could not be seasonably stopped.''

Mr. Seward, Sec. of State, to Mr. Barbosa da Silva, Deo. 26, 1S64. MSS. Notes,

Brazil.
As to the capture of the Florida, see more fully $upraj $ 27.

Supply in a neutral port of coal to a belligerent cruiser firom a constant
^c^^liDg base, made available as a system for the purposes of the belliger-
^i:^^, is a breach of neutrality.

4 Pap. Bel., Treat. Wash., 12/. Infra, ^ 398, 402a. Supra, } 369.

Sat the mere occasional supply of coal to a belligerent cruiser, not
^om a constant coaling base, or in such quantities as to greatly en-
liaxice the cruiser's capacity for destruction, is not of itself a breach of
neutrality.

Ihid. See criticism by Mr. Lawrence in Whart. Crim. Law (9th ed.), $ 1908.
And see also Whart. Com. Am. Law, $$ 249 jf. See also avpra, i 396; in^
fira, i 402a.

A capture made in neutral waters is, as between enemies, deemed to
&U intents and purposes rightful. It is only by the neutral sovereign
that its legal validity can be called in question ; and if he omits or de-
clines to interpose a claim, the property is condemnable,^tfra belli, to
the captors. If the captured vessel commence hostilities upon the
<^ptor in neutral waters, she forfeits the neutral protection, and the
^ptore is not an injury for which redress can be sought from the neu-
ral sovereign.

The Anne, 3 Wheat.> 435.

A capture of Spanish property by a vessel built, armed, equipped,
*^d owned in the United States, is illegal, and the property, if brought
within our territorial limits, will be restored to the original owners.

La Concepcion, 6 Wheat., 235.

576

§ 399.] NEUTRALITY. [CHAP. X

Eestitation oaght not to be decreed on the ground of the violat:
of oar neatrality, unless the fact be established beyond a reasona
doubt.

The Santissima Trinidad, 7 Wheat., 283.

A purchase of a ship-of-war from an enemy whilst lying in a neut
port, to which it had fled for refuge, is invalid, and the ship remai
liable to capture and condemnation, though the purchase was honaj
for a commercial purpose, the ship having been dismantled prior to t
sale and afterwards fitted up for the merchant service.

The Georgia, 7 Wall.,' 32. See more fuUy aupra, $ 393.

The seizure by one belligerent, in neutral territory, of a ship beloi
ing to another belligerent, is unlawful, and the ship must be restorec

1 Op., 32, Randolph, 1793 ; 1 Am. St. Pap. (For. Rel.), 148 ; 9upra, $ 27.

Where it is claimed by a foreign minister that a seizure made by
American vessel was a violation of the sovereignty of his Govemmei
the President may, upon being satisfied of the fact, where there is
suit pending for the seizure, cause the Attorney-Oeneral to file a sl
gestion of the fact in the cause, in order that it maybe disclosed tot
court.

1 Op., 504, Wirt, 1821.

Every neutral nation has a right to exact, by force, if need be, t1
belligerent powers shall not make use of its territory for the purpc^
of their war.

7 Op., 122, Gushing, 18&5.

^< Our courts held f during the war between France and England) a
they continue to hold, that if the capture be made within the territoi
limits of a neutral country into which the prize is brought, or bj
privateer which has been illegally equipped in such neutral coonti
the prize courts of that country not only possess the power, bat it
their duty to restore the property to the owner.''

Mr. Lawrence, North Am. Rev., July, 1878, p. 26.

The claims maintained by the United States against Denmark froa
1779, for a series of successive years, were for certain prizes captarec
during the Revolutionary War by the privateers under Paul Jones
These prizes were carried into a port of Norway, then under the Daai^^
Grown. Denmark surrendered them to Great Britain. A demand foi
indemnity was made at once by Dr. Franklin, and was met by the Daniso
Government by an assertion that Denmark was bound to this coQi^
by her engagements with Great Britain. An indemnity was, hoire^<^|
offered, but was declined as inadequate. TS Sparks's Dip. Corr., 1^^')
After further negotiations, in 1805, Mr. Madison, Secretary of StatCr
insisted that in any view the restoration of the prizes to the other par^X
in the war would be unauthorized, and the right of the United Stated
to compensation was unquestionable.

* Oongress, in 1806, made an appropriation to the commander of oo^
of the frigates " on account of his claim for prize money .'^ «< to be o^

576

CHAP. XXI.] ABUSE OF TEEEITOEIAL WATERS. [§ 399.

<ioct€d from his proportion of the money which may be obtained from
the Danish Government.''

6 U. S. Stat. L., 61.

The farther progress of these claims is discussed in Lawrence's Wheaion (ed.
1863), 41 ff, and their character is considered «iipra, $ 329a.

In a dispatch from Mr. -Wheaton to Mr. Upshur, Secretary of State,

I^ovember 10, 1843, which was adopted as the basis of instructions in

reply, Mr. Wheaton took the ground that, in " the absence of any treaty

witlx England to exclude the prizes of her enemy, and of any previous

pioliibition to the United States, by either of which means their prizes

migbt have been refused admission without any violation of neutrality,

they had a right to presume the assent of Denmark to send them into her

porta; the more especially had they such a right when based, as in the

actual case, on necessity from stress of weather. When once arrived

in tbe port, the neutral Government of Denmark was bound to respect

the military right of possession, lawfully acquired through war, by

capture on the high seas, and continued in the port to which the prize

vas brought."

See fiirther as to these claims, House £x.Doo. 264, 28th Cong., 1st sess.; Senate
Rep. 63, 29th Cong., 2d sess.; Cong. Globe, 37th Cong., Ist sess., 312. Law-
rence's Wheaton, ut «i/j»ra, and details given Bupra, $ 329a.

^^ It is undoubtedly true that no private person can rest a claim for
tbe restoration of prize in the courts of the captor on the ground that
the capture was made in neutral waters, and that the neutral nation
whose rights have been infringed alone can interpose."

The LiUa, 2 Spragne, 177; The Sir William Peel, 5 WaU., 517 ; The Adela, 6
%hid.y 266 ; The Anne, 3 Wheaton, 435 ; Wheaton, Dana's note, 209 ; Judge
Holmes' note to 1 Kent, 118.

''A neutral state, also, is not bound to receive in its waters the ships-
pf'War of belligerents, though it may grant the privilege, if it grants
it to the vessels of both belligerents. In cases of necessity, an asylum
fihoald not on any pretense be refused. The mere transit of belligerent
^bips-of-war through neutral territorial waters is permitted when such
^Aters are the margin of the open seas. But the use of the territorial
paters of a neutral state cannot by the law of nations be granted to a
^Uigerent for warlike purposes, or for the purposes of equipment with
Monitions of war. It is otherwise with regard to repairs and obtaining
provisions and coal ; though, as we shall see, a neutral cannot open a
<iepot for the permanent supply of coal and provisions to belligerent
^^niisers. And the stay of belligerent cruisers in a neutral port is
^oally limited by proclamations of the neutral Government to twenty-
^our hoors^ unless a longer time be required by stress of weather or by
^ necessity for repairs. It is settled that a belligerent cruiser cannot
^ permitted to pursue a ship of the other belligerent into neutral
J^atere, or, itfartiariy to engage in direct warfare in such waters. It
^ been argued that a belligerent cruiser, when pursued, cannot be
^nted an asylum in a neutral port, except on condition of going out
^' service during the war, though the preponderance of opinion is
^Siinst this view. But it is generally agreed that it is not permissible
*w a belligerent cruiser to pursue a cruiser or merchant vessel of the

8. Mis. 162— VOL. m 37 ' 577

§ 399.] NEUTRALITY. [CHAP. XXI

other belligerent immediately on the latter leaving the neutral port
Before such pursuit is permitted, twenty-four hours should intervene.

Whart. Com. Am. Law, $ 239. See more folly auji»ra, $ 27.

The case of the American privateer brig G-eneral Armstrong, de
stroyed in the harbor of Fayal^ in September, 1814, by an English squad
ron, has been elsewhere referred to (supra, S § 27, 227, 248 ; tn/ra, § 401) , am
it has been seen that the claim brought by the United States against
Portugal for breach of neutrality in permitting the outrage, was r^errec
to Louis Napoleon as umpire, whose decision was adverse to the XJnitec
States.

Supra, $ 227. See also Lawrence's Wheaton (ed. 1863), 720, 721, citing Senat
Ex. Doc, 32d Cong., lat seas. ; House Ex. Doc. 53, 32d Cong., 2d sea^ ; Sen
ate Ex. Doc., 24.

^'Again, in the case of the reclamations made by the United Statei
Government upon that of Portugal for the destruction of the privatee:
General Armstrong, in Fayal Harbor, in 1814, by an English squadron
being in effect a violation of neutral territory, the matter was referrei
to the arbitration of the Emperor Louis Napoleon, at that time Pres:
dent of the French Eepublic, who, by his award dated the 30th Noveir
ber, 1852, having ascertained that the first shot was fired by the Ame::
ican commander, that the protection of the Portuguese Govemmen
was not appealed to until the fight had commenced, and that con&^
quently the American captain had himself violated the neutral territoa
of the Portuguese sovereign, held that as on these grounds Portus^
was not responsible for the result of the conflict, consequently no ii
demnity was due to the American Government."

Abdy'a Kent (2d ed.), 157.

•

It is maintained by Sir W. Harcourt (Historicus, 161, 162), that wlm.4
neutral rights have been invaded by one belligerent to the injury of ai
other, the latter, ^'who, though he may have sustained ii\jury, has s^^
fered the violation of no right, has no definite or lawful claim upon 'K:
neutral for reparation. He may urge on the neutral, by way of rem ^
strance, the duty of obtaining redress for him at the hands of the
fender J this, however, is only a duty of imperfect obligation. '
cannot demand at the hands of the neuti*al compensation for theuqj'^
he may have sustained, nor can he impose upon the neutral the dot^zS
obtaining for him any remedy beyond that which may be had over
sons or things which may be infra prcesidia^ and consequently within
neutral jurisdiction." To this effect is cited The Anne, 3 Wheat., ^k=
Story, J . ; 1 Kent Com., 116, 119, 121. But Judge Holmes (in his not^^
1 Kent Com., 117) says : '^ The text does not seem to bear out the con-^
sion just stated. In the well-known case of the General Armstrc^i
the United States made a claim against Portugal for not preventing t
destruction of a United States privateer by British vessels, when l^^w
in a Portuguese harbor, during the war of 1812. The case was sal^zs/
ted to Louis Kapoleon, then President of the French Bepublic, who la^^'
that Portugal was excused, even admitting the principle that a neo^^
might be liable under such circumstances, by the alleged facts that the
garrison was feeble and that the American commander had not app^i^
in proper time to the local officer for protection, but had resistecZ the
attack with arms, thus himself violating the neutrality of the territory.
Wheaton, Lawrence's note, 217 ; Wheaton, Dana's note, 208. In 1 Pi^

' 678

CHAP. XXI.] SALE OF PRIZE IN PORTS. [§ 400.

toye et Duverdy, Trait6 des Prises Maritimes, 197, a contrary doctrine
to that of Historicus is laid down."

On general principles, as is elsewhere shown, a neutral may, by fail-
Tue to perform the duties of neutrality, make himself liable to a bellig-
erent who suffers from such failure. Supra^ § 227; tn/ra, § 400.

(7) Nor to permit sale of priz^ in ports.

§ 400.

"Bestitution of prizes has been made by the Executive of the United
States only in the two cases, 1st, of capture, within their jurisdiction,
by armed vessels originally constituted such without the limits of the
United States ] or 2d, of capture, either within or without their juris-
dictioB, by armed vessels, originally constituted such within the limits
of the United States, which last have been called proscribed vessels.
*^A11 military equipments within the ports of the United States are
forbidden to the vessels of the belligerent powers, even where they have
been constituted vessels-of-war before their arrival in our j ports ; and
where such equipments have been made before detection, they are or-
dered to be suppressed when detected, and the vessel reduced to her
anginal condition. But if they escape detection altogether, depart and
^^e prizes, the Executive has not undertaken to restore the prizes.

'^ With due care it can scarcely happen that military equipments of
^y magnitude shall escape discovery. Those which are small may
^xnetimea, perhaps, escape, but to pursue these so far as to decide that
^e smallest ciroumstance of military equipment to a vessel in our ports
^ball invalidate her prizes through all time, would be a measure of in-
Scalable consequences. And since our interference must be governed
^y some general rule, and between great and small equipments no prac-
^cable line of distinction can be drawn, it will be attended with less
^vji on the whole to rely on the efOiciency of the means of prevention,
^at they will reach with certainty equipments of any magnitude, and
^e great mass of those of smaller importance also ; and if some should
^ the event escape all our vigilance, to consider these of the number
^f cases which will at times bafi9e the restraints of the wisest and best
Swarded rules which human foresight can devise. And I think we may
^^ely rely that since the regulations which got into a course of execu-
^on about the middle of August last it is scarcely possible that equip-
ments of any importance should escape discovery."

Mr. Jefferson, Seo. of State, to minister of Great Britain, Nov. 14, 1793. MSS.
Notes, For. Leg.; 4 Jeff. Works, 79. See as to treaty with France supra, $ 148.

British ships with their prizes were not, in 1795, under the then treaty
^th France, suffered to come into the ports of the United States.

Hr. Bandolpb, Sec. of State, to Mr. Hammond, Apr. 13, 1795. MSS. Notes, For.
Leg.

§ 400.] NEUTRALITY. [CHAP. XX

" The sale of prizes brought into the ports of the United States b
armed vessels of the French Eepublic, • • • has been regarded b
us not as a right to which the captors were entitled either by the lai
of nations or our treaty of amity and commerce with France."

Mr. Piokering^ Sec. of State, to Mr. Adet, May 24, 1796. MSS. Notes, For.'Lef
1 Am. St. Pap. (For. Rel.), 651. In Mr. Pickering's letter to Mr. Adet, <
Nov. 15, 1796, this is confined, for the present, to sales 6f prizes taken b
privateen, MSS. Notes, For. Leg.

Fitting out in the ports of the United States privateers to attac]
British commerce being an invasion of the neutrality of the Unites
States, " the most effectual means of defeating their unlawful practice
was the seizing of their prizes when brought within our jurisdiction."

Mr. Pickering, Sec. of State, to Mr. Pinckney, June 16, 1797. MSS. Inst
Ministers.

When a foreign belligerent cruiser brings a prize into a neutral peer
the cruiser will be required to depart as soon as practicable, and w3
not be permitted to dispose in such port of the prize or of its goods.

Mr. Clay, Sec. of State, to Mr.Tacon, Apr. 11, 1828. MSS. Notes, For. Leg.

" The laws of the United States do notadmit of the sale within th^
jurisdiction, for any purpose of prize, goods taken by one belliger^
from another and brought into their ports. , This Government does rm
take jurisdiction at all upon the question of prize or no prize, but lea vi
that question exclusively to the cognizance of the tribunals of the r
spective belligerents."

Mr. Clay, Sec. of State, to Mr. Obregon, May 1, 1823 ; ibid,

<' If either belligerent is allowed by the laws of the United States to seli
his prizes within their ports. The rights of hospitality are equally
offered to both. They could not ba denied, in many cases, without a
violation of the duties of humanity."

Mr. Clay, Sec. of State, to Mr. BebeUo, May 1, 1828 ; ibid.

After a privateer of one belligerent has captured a merchant vessel
of the other, " the property cannot be transferred until after it shafl
have been condemned by a court of admiralty ; and the question of pn^
or no prize belongs exclusively to the courts of the captor.^

Mr. Buchanan, Sec. of State, to Mr. Saunders, Jnne 13, 1847. MSS. Io^>
Spain.

The Chesapeake, a United States merchant steamer, was seized by fl
Confederate privateer, which, in order to avoid recapture, brought h^
into a Nova Scotian port. There she was seized by the provincial ^^'
thorities and held for adjudication. The judge before whom the case
was argued held that the sovereign whose territorial rights are violated
by the subjects or citizens of a friendly state, can, If he finds them witbin
his jurisdiction, inflict on them his own penalty in his oyn mode; ^^^
the Chesapeake, if a prize at all, was an uncondemned prize ; that (ot»

580

CHAP. XXLJ sale of PRIZE IN POETS. [§ 400.

belligerent to bring an nncondemned prize into a neutral port, to avoid
recapture, is such a grave offense against the neutral state that it ipso
facto subjects the prize to forfeiture, and that the vessel should be re-
stored to the owners on the payment of costs. " By the direction of
the President I have advised that the owners pay the costs under
protest. This Government still adheres to the opinion that it was its
right under the circumstances of the case to have an immediate and un-
conditional restitution of the Chesapeake and her cargo by executive
antliority, without waiting for an adjudication; nevertheless, it ac-
cepts the restitution so far as it has been ordered, and in the form in
whicli it has been adjudged, and willingly leaves further claim for future
consideration, being satisfied that Her Majesty's provincial authorities
in Nova Scotia have conducted their proceedings in this matter in a
Bpirit at once just and friendly towards the United States ; and that
the judgment rendered reflects honor upon the enlightened magistrate
who presides in the vice-admiralty court."

Mr. Seward, Sec. of State, to Mr. Adams, Feb. 24, 1864. MSS. Inst., Or. Brit.
A general narrative of the proceedings in reference to the Chesapeake is given
aupra, $ 27.

If a capture be made by a privateer which had been illegally equipped
in a neutral country, the prize courts of such country have power, and
it is their duty, to restore the captured property, if brought within their
jurisdiction, to its owner.

Brig Alerta v. Moran, 9 Cranch, 359.

if a prize, taken in violation of our neutrality, is voluntarily brought
within our territory, the courts must decree restitution to the original
owners. Where, however, the original owner seeks restitution on the
^und of a violation of our neutrality by the captors, the ontisprobandi
^staon him to make out his case.

La Amistad de Rnes, 5 Wheat., 385.

^^Xhe doctrine heretofore asserted in this court is, that whenever a
^ptore is made by any belligerent in violation of our neutrality, if the
P^e come voluntarily within our jurisdiction, it shall be restored to the
^^ginal owners. This is done upon the footing of the general law of
^tions, and the doctrine is fully recognized by the act of Congress of
^^^. But this court have never yet been understood to carry their ju-
Miction in cases of violation of neutrality beyond the authority to de-
^^e restitution of the specific property, with the costs and expenses
^^ng the pending of the judicial proceedings. We are now called
^Pon to give general damages for plunderage, and if the particular cir-
cumstances of any case shall hereafter require it, we may be called
^Pou to inflict exemplary damages to the same extent as in ordinary
^^^^ of marine torts. We entirely disclaim any right to inflict such
^^mages, and X3onsider it no part of the duty of a neutral nation to

581

§ 401.] NEUTRALITY. [CE

interpose apon the mere footing of the law of nations to settl
rights and wrongs which may grow oat of a capture between
ents. Strictly speaking, there can be no such thing as a mi
between the belligerents. Each has an nndoubted right to es
the rights of war against the other, and it cannot be a matt«:
cial complaint that they are exercised with severity, even if th
do transcend those rules which the customary laws of war jus
least, they have never been held within the congnizance of i
tribunals of neutral nations. The captors are amenable to t
Government exclusively for any excess or irregularity in their
ings, and a neutral nation ought not otherwise to interfere tha
vent captors from obtaining any unjust advantage by a violati
neutral jurisdiction. A neutral nation may, indeed, inflict p
or other penalties on the parties for any such violation ; bu
does it professedly in vindication of its own rights, and not b
comx)en8ation to the captured. When called upon by either o1
ligerents to act in such cases, all that justice seems to require
the neutral nation should fairly execute its own laws and give n<
to the property unjustly captured. It is bound, therefore, t
the property if found within its own ports, but beyond this
obliged to interpose between the belligerents."

Ibid., 389 ; Story, J. See farther svpra, $ 396.

There is high authority for the position that a prize may Im
into a neutral port and there sold, but considerations of ex]
should lead the neutral sovereign to exercise his undoubted
prohibiting such sale.

2 Op., 86, Wirt, 1828.

It would be a breach of neutrality to permit a port to be
cruising station for a belligerent, or a depot for his spoils and p

Ibid.

It is not a breach of neutrality to permit a vessel captured
to be repaired in our ports and put in a condition to be taken 1
of the captor for adjudication.
Ihid.

(8) BOXTND TO REDRESS DAMAGES DONE TO BELLIGBREMT BT rTB CONKI^

KBOLIGENCE.

§ 401.

Mr. Jefferson, Secretary of State, in his letter of Septembei
to Mr. Hammond, stated that ^^ having, for particular reasons, i
to use all the means in our power for the restitution" (to Bag
certain vessels captured by French privateers which were flttc
ports of the United States, ^Hhe President thought it incumbei
United States to make compensation for them."

1 Wait'8 St. Pap., 166; 1 Am. St. Pap. (For. Rel.), 174.

582

CHAP. XXI.] neutral's LIABILITIES [§401.

'^I take the trae principle to be that 'for violations of jurisdiction,
with the consent of the sovereign or his voluntary sufferance, indemni-
fication is due ] but that for others he is bound only to use all reasonable
means to obtain indemnification from the aggressor, which must be cal-
culated on his circumstances, and these endeavors bona fide made ; and,
failing, he is no further responsible.' It would be extraordinary, indeed,
if we were to be answerable for the conduct of belligerents through our
^bole coast, whether inhabited or not."

Mr. Jefferson, President, to the Secretary of State, Apr. 21, 1807. 5 Jeff. Works,
09.

When there is an invasion of neutral rights by privateers commis-
-sJoned by the United States their commissions will be withdrawn.

Mr. Monroe, See. of State, to Mr. Rademaker, May 1, 1814. MSS. Notes, For.
Leg.

When there is probable cause to believe that expeditions are on foot
to violate the neutrality laws of the United States, the President will
<lirect the district attorneys of the jurisdictions in which such move-
ments are suspected to e^ist to order due inquiries, and, if there be suf-
ficient evidence, to commence legal proceedings against the parties im-
plicated.

Mr. Forsyth, Sec. of State, circular, Dec. 21, 1837. MSS. Dom. Let. Other cir-
culars to the same effect will be found in the records of the Department of
State for 18;^-'3S-'39. See also letter of Mr. Forsyth to the GoTemor of Ver-
mont, Dec. 27, 1837 ; ibid. See infra^ $ 402.

A vessel was fitted out at Savannah with armament, munitions, and
=sea stores, and being afterwards found, under another name, with a
-commission from the Republic of Venezuela to cruise against the sub-
jects of the King of Spain, was seized by the United States authorities
for violating the neutrality laws. The captain admitted that the vessel
b^ already made a cruise in the capacity above stated, but applied to
^be President for her discharge from further prosecution on the ground
^at she was a legitimate armed vessel, lawfully sailing under the flag
of Venezuela. It was held that the case was one for adjudication in
^Qrt, and did not call for the extraordinary interference of the Gov-
ernment.

1 Op., Wirt, 1818.

^he better opinion is that the belligerent of whom an unjust ad-
vantage is taken (by a neutral's partiality) has a right to redress from
^he neutral who permits his neutrality to be thus abused.

Whort. Com. Am. Law, $$ 249 ff, citing Lawrence's Wheaton, note 217 ; Dana's
Wheaton, 208 ; Hoknes' note to 1 Kent Com., 117, 118.

^his was the position taken in the long-litigated case of the brig
"^neral Armstrong, which was seized during the war of 1812, in a
^^rtuguose port, by a British cruiser, in violation of Portuguese neu-
^^ty. The parties interested claimed redress from Portugal, but, on

583

§ 401.] NEUTRALITY. [CHAP. 5X1^

reference to Louis Kapoleon (afterwards emperor) as arbitrator, thecas^-
was decided against them. Congress tben passed a resolution appro--
priating a fand to repay them their losses.

The olaim of those interested in the brig General Armstrong is discnssed icM
greater detail supra, $$27, 247, 248, 399.

"The power A lives in perfect harmony and friendship with power!
The power 0, either with reason or withoat, commits hostilities again&^
the subjects of the power *B, takes some of their vessels, carries the
into the ports of A, friend of both, where they are condemned and sol
by the official agents of power C, without power A being able to pri
vent it. At last a treaty is entered into, by which the powers B and <
adjust their differences, and in this treaty the power B renounces
abandons to power G the right to any claim for the iujuries and
occasioned to its subjects by the hostilities from power C.

^^Quoere. Has the power B any right to caU upon power A for i-^^
demnities for the losses occasioned in its ports and coasts to its su ^
jects by those of power 0, after the power B has abandoned or relL ^
quished, by its treaty with 0, its rights for the damages which cori_3
be claimed for the injuries sustained by the hostile conduct of t
power O t

^^Answer. We have considered the above case, and are of opinL
that, on the general principles of the law of nations, the power A is
liable to the power B for acts done upon the vessels belonging to t
subjects of power B by the power 0, within the ports of A, the lat
not being aibls to prevent it Nations are not, any more than individns^ls
bound to perform impossibilities.

"But even leaving impossibilities out of the question, and admitti^xii;
that the power A could have prevented the injury which was committee
by the power 0, but refused or neglected to do it, we are of opiaiou
that, if the power B has released or relinquished the same injury to
power 0, in that case the power A is no longer liable to any responsi-
bility in damages on account of its acquiescence:

"1st. Because it appears to us that, in the present case, the power* C
is to be considered as the principal party and the power A merely^ ^s
an accessory, and that it is in that relation to each other that tli^ir
several acts and their respective liability to the injured party is to ^
considered. Now, it is in the nature of all accessory things that tti^y
cannot subsist without the principal thing, and the principal tresi>^^^
being done away by the release to 0, the accessory offense of A ncms^
be done away likewise, according to the well-known maxim of law, ^^*
cessorium sequitur principale.

"2d. Because a release or relinquishment of a right implies in l^'''^
the receipt of satisfaction; and it is contrary to every principle of jotris-
prudence for a party to receive a double satisfaction for the same inj tmrv^
and here the injury received by B from 0 and from A is essentially^ t^Jj®
same. The acts of those two powers were indeed different, bat '^^
effect which they produced was the same, and that effect only can ^
the object of compensation in damages.

" 3d. Because if the power A could be compelled to make satisfacti£j
to power B for the injury which the latter has released or relinquisb^^
to 0, that release or relinquishment would be defeated to every useA^'
purpose, as the power 0 would be liable to the power A for the bbij^^
damages from which it was intended to be discharged by the release ^^
B. Now a release, as well as every other contract or engagement, i^'

584

CHAP. XXI.] DEGREE OF VIGILANCE TO BE EXERCISED. [§ 402.

plies tbat nothing shall be done by the grantor directly or indirectly to
defeat its bona jQie intent or effect. If, therefore, the claim preferred
by B upon A will, if admitted, indirectly defeat the release granted to
O9 snch claim must be pronoanced to be illegaL

**lIpon the whole, we are of opinion that the release granted by the
power B to the power 0 operates also as a release to the power A for its
participation in the injury which was the object of that release.

*»JARED INGERSOLL.
"WILLIAM RAWLE.
"J. B. McKEAN.
"P. a DUPONCEAU.
• 'Philadelphia, November 15, 1802."

2 Am. St. Pap. (For. ReL), 605.

•*The power and duty of the United States to restore captures made
in violation of our neutral rights and brought into American ports,
ti^Te never been matters of question; but, in the constitutional ar-
i^^c^ngement of the different authorities of the American Federal Union,
doubts were at first entertained whether it belonged to the executive
G^overnment or to the judiciary to perform the duty of inquiry into
eapturea made in violation of American sovereignty, and of making
^*^«titution to the injured party. But it has long since been settled that
^^18 duty appropriately belongs to the Federal tribunals, acting as courts
^^ admiralty and maritime jurisdiction. It, however, has been judicially
^^termined that this peculiar jurisdiction of the courts of the neutral
QxDvemment to inquire into the validity of captures made in violation of
p*^« neutral immunity, will be exercised only for the purpose of restor-
^'^^ the specific property when voluntarily brought within the territory,
^^id does not extend to the infliction of vindictive damages, as in ordi-
*^^ry cases of maritime injuries, and as is done by the courts of the
^^ptort own country. The punishment to be imposed upon the party
Relating the municipal statutes of the neutral state is a matter to be
^^termined in a separate and distinct proceeding. The court will ex-
^ixsifie jurisdiction and decree restitution to the original owner, in case
^^ capture from a belligerent power by a citizen of the United States,
^xider a commission from another belligerent power, such capture being
^ Eolation of neutral duty ; but they have no jurisdiction on a libel for
damages for the capture of a vessel as prize by the commissioned cruiser
^ a belligerent power, although the vessel belong to citizens of the
tixiited States and the capturing vessel and her commander be found
*^<1 proceeded against within the jurisdiction of the court."

2 HaUeck's Int. Law (Baker's ed.), 207. See as to action of prize coorts in such
cases, svpra, $$ 328^.

III. DEGREE OF VIGILANCE TO BE EXERCISED.

^^) KoT FSRFSCT VIGILANCE, BITT SUCH AS IS REASONABLE UNDER THE CIRCUM-
STANCES.

§402.

^^ Observations on the value of peace with other nations areunneces-

^^^. It would be wise, however, by timely provisions to guard against

^*^08e acts of our own citizens which might tend to disturb it, and to

^^t ourselves in a condition to give that satisfaction to foreign nations

§ 402.] NEUTRALITY. [CUAP. XXt.

which we may sometimes have occasion to reqaire from them. I pair^
ticularly recommend to your consideration the means of preventing thoa^^
aggressions by oar citizens on the territory of other nations, and othc^L^^
infractions of the law of nations, which, famishing just subject of coir^ ^
plaint, might endanger oar peace with them. And, in general, tl^^
maintenance of a friendly intercourse with foreign powers will be pr^^^^
sented to your attention by the expiration of the law for that porpoa^^,
which takes place, if not renewed, at the close of the present sessioix^"

President WashiDgton^ Fourth Annnal Address, 1792.

^^ You may on every occasion give assurances, which cannot go beyond
the real desires of this country, to preserve a fair neutrality in the pres.
ent war, on condition that the rights of neutral nations are respected
in us as they have been settled in modem times either by the express
declarations of the powers of Europe, or their adoption of them on
particular occasions. From our treaties with France and Holland, and 1^^
that of England and France, a very clear and simple line of condact f j&
can be marked out for us, and I think we are not unreasonable in ex
pecting that England shaU recognize towairds us the same principles Ijj^
which she has stipulated to recognize towards France in a state of nea- I r^
trality.*^ l^

Mr. Jefferson, Seo. of State, to Mr. Pinckney, Apr. 20, 1793. MSS. Inst, His-

isters. x<»^ »

'^ Whereas it appears that a state of war exists between Austria, I ^^
Prussia, Sardinia, Great Britain, and the United Netherlands on the one
part, and France on the other, and the duty and interests of the United
States require that they should with sincerity and good faith adopt and
pursue a conduct Mendly and impartial toward the belligerent powers:

'* I have, therefore, thought fit, by these presents, to declare the dis-
position of the United States to observe the conduct aforesaid toward
those powers respectively, and to exhort and warn the citizens of tbo
United States carefully to avoid all acts and proceedings whatsoever
which may in any manner tend to contravene such disposition. }<^

*'And I do hereby also make known that whosoever of the citixens ^^
the United States shall render himself liable to punishment or forfeit
are under the law of nations by committing, aiding, or abetting f^ostU-'
ities against any of the said powers, or by carrying to any of thes^ I|^
those articles which are deemed contraban4 by the modern usage ^^ *^^'
nations, will not receive the protection of the United States sgaiiE^
such punishment or forfeiture; and further, that I have given inatra^^
tions to those officers to whom it belongs to cause prosecutions to t^
instituted against all persons who shall, within the cognisance of tP^^
courts of the United States, violate the laws of nations with respect
the powers at war or any of them."

President Washington's proclamation, Apr. 22, 1793.
5S6

Ikm

«fTi

CBAP. XXI.] DEGREE OF VIGILANCE TO BE EXERCISED. [§ 402.

''The public papers giving us rcasou to believe that the war is be-
coming nearly general in Europe, and that it has already involved
nations with which we are in daily habits of commerce and friendship,
the President has thought it proper to issne the proclamation of which
I inclose you a copy, in order to mark out to our citizens the line of
conduct they are to pursue. That this intimation, however, might not
work to their prejudice, by being produced against them as conclusive
evidence of their knowledge of the existence of war and of the nations
engaged in it, in any case where they might be drawn into courts of
jostice for acts done without that knowledge, it has been thought nec-
essary to write to the representatives of the belligerent powers here
the letter, of which a copy is also inclosed, reserving to our citizens *
those immunities to which they are entitled till authentic information
shall be given to our Government by the parties at war, and be thus
communicated with due certainty to our citizens."

Mr. Jeffenon, Seo. of State^ to MeBsrs. Morris, Pinckney, and Short, Apr. 26,
1793. MSS. Inst., Ministers.

*'This [the Cabinet] sits almost every day on questions of neutrality.
H. prodnced the other day the draft of a letter from himself to the collect-
ors of the customs, giving them in charge'to watch over all proceedings
iu their districts contrary to the laws of neutrality or tending to impair
onr peace with the belligerent powers, and particularly to observe if
vessels pierced for guns should be built, and to inform Mm of it. This
^as objected to: (I) As setting up a system of espionage destructive
of the peace of society; (2) transferring to the Treasury Department
the conservation of the laws of neutrality and peace with foreign
nations; (3) it was rather proposed to intimate to the judges that the
laws respecting neutrality being now come into activity, they should
<^harge grand juries with the observance of them, these being constitu-
tiontd and public informers, and the persons accused knowing of what
they Bhoidd do, and having an opportunity of justifying themselves.
£• B. found out a hair to split, which, as always happens, became the
decision. H. is to write to the collectors of the customs, who are to
<H)Qvey their information to the attorney of the district, to whom E. B.
is to write, to receive their information and proceed by indictment.
^e clause respecting the building vessels pierced for guns is to be
omitted ; for, although three against one thought it would be a breach
of neutrality, yet they thought we might defer giving a public opinion
on it as yet. Everything, my dear sir, hangs upon the opinion of a
^^fie person, and that the most indecisive one I ever had to do busi-
^M inth. He always contrives to agree in principle with one, but in
<5oncluBion with the other.^

Mr. Jefferson, Sec. of State, to Mr. Madison, May 13, 1793. 2 Randall's Life of
Jefferson, 131.

'^The United States, in prohibiting all the belligerent powers from
Quipping, arming, and manning vessels-of-war in their ports, have
^^ercised a right and a duty with justice and with great moderation."

Mr. Jefferson, Sec. of State, to Mr. Genet, Jane 5, 1793. 1 Wait's St. Pap., 93 ;
1 Am. St. Pap. (For. Kel.), 150.

587

§ 402.] NEUTRALITY. [CHAP. XXIX

<^ You have most perfectly seized the original idea of the prodamatio n
When first proposed as a declaration of neutrality, it was opposed, firs.'t
because the Executive had no power to declare neutrality ; second, ^
such, a declaration would be premature, and would lose us the beneG
for which it might be bartered. It was urged that there was a stroci.
impression in the minds of many that they were free to join in the hos
tilities on the side of France. Others were unapprised of the dan^^
they would be exposed to in carrying contraband goods, etc. It w&«
therefore, agreed that a proclamation should issue, declaring that xr<
were in a state of peace, admonishing the x>eople to do nothing contira
vening it, and putting them on their guard as to contraband. On tlii^
ground, it was accepted or acquiesced in by all, and E. K., who drew
it, brought it to me (the draft) to let me see there was no such word as
neutrality in it. Circumstances forbid other verbal criticisms. The
public, however, soon took it up as a declaration of neutrality, and it
came to be considered at length as such. • • • With respect to our
citizens who had joined in hostilities against a nation with whom we
are at peace the subject was thus viewed: Treaties are law. By the
treaty with England, we are in a state of peace with her. He wiio
"breaks that peace, if within our jarisdiction, breaks the laws, and is
punishable by them. And if he is punishable, he ought to be pauished,
because no citizen should be free to commit his country to war."

Mr. Jefferson, Sec. of State, to Mr. Monroe, Jnly 14, 1793. 2 RandaIVs Life of

Jefferson, 167.
Mr. Hamilton's circnlar instructions of Aug. 4, 1793, to collectors of customs ue

in 1 Am. St. Pap. (For. Eel.) 140; and are given snpra, $ 196.

" On the declaration of war between Prance and England, the United
States being at peace with both, their situation was so new and inex-
perienced by themselves, that their citizens were not, in the first in-
stant, sensible of the new duties resulting therefrom, andof the restraints
it would impose even on their dispositions towards the belligerent powers.
Some of them imagined (and chiefly their transient sea-faring citizens,
that they were free to indulge those dispositions to take side with either
party, and enrich themselves by depredations on the commerce of the
other, and were meditating enterprises of this nature, as there was
reason to believe. In this state of the public mind, and before it should
take an erroneous direction, difficult to be set right, and dangerous to
themselves and their country, the President thought it expedient,
through the channel of proclamation, to remind our fellow-citizens that
we were in a state of peace with all the belligerent powers; that in that
state it was our duty neither to aid nor injure any ; to exhort and warn
them against acts which might contravene this duty, and particularly
those of positive hostility, for the punishment of which the laws would
be appealed to, and to put them on their guard also as to the risks
they would run if they should attempt to carry articles of contraband
to any. This proclamation, ordered on the 19th and signed the 22u

688

DEGREE OP VIGILANCE TO BE EXERCISED. [§ 402.

Y of April, was sent to you in my letter of the 26th of the same
mth.'*

Mr. Jefferson, See. of State, to Mr. Morris, Ang. 16, 1793. M8S. Inst., Mm.
isters.

^As in cases where vessels are reclaimed by the subjects or citizens
the belligerent powers as having been taken within the jurisdiction
the United States, it becomes necessary to ascertain that fact by
itimony taken according to the laws of the United States, the gov-
lors of the several States, to whom the application will be made in
a first instance, are desired immediately to notify thereof the attor-
ys of their respective districts. The attorney is thereupon instructed
giv^ notice to the principal agent of both parties who may have
tne in with the prize, and also to the consuls of the nations inter-
ted, and to recommend to them to appoint, by mutual consent, arbi-
rs to decide whether the capture was made within the jurisdiction of
e United States, as stated to you in my letter of the 8th instant, ac-
rding to whose award the governor may proceed to deliver the vessel
the one or the other party. But in case the parties or consuls shall
't agree to name arbiters, then the attorney, or some person substi-
ted for him, is to notify them of the time and place when and where
) will be, in order to take the depositions of such witnesses as they
^j cause to come before him, which depositions he is to transmit for
e information and decision of the President."

Mr. Jefferson, Sec. of State, to Mr. Hammond, Not. 10, 1793. MSS. Notes, For.
Leg. 4 Jeff. Works, 76 ; 1 Am. St. Pap. (For. Rel.), 183 ; I Wait's St. Pap.,
196.

i& soon as the war in Europe had embraced those powers with whom

ITnited States have the most extensive relations, there was reason

brehend that our intercourse with them might be interrupted and

vsposition for peace drawn into question by the suspicions too

lentertained by belligerent nations. It seemed, therefore, to be

ty to admonish our citizens of the consequences of a contraband

uid of hostile acts to any of the parties, and to obtain, by a

|tion of the existing legal state of things, an easier admission of

lit to the immunities belonging to our situation. Under these

ions the proclamation which will be laid before you was issued.

tis posture of afEairs, both new and delicate, I resolved to adopt

tales which should conform to the treaties and assert the priv-

the United States. These were reduced into a system, which

wnmunicated to you. Although I have not thought myself at

forbid the sale of the prizes permitted by our treaty of com-

H France to be brought into our ports, I have not refused to

ft to be restored when they were taken within the protection

itory, or by vessels commissioned or equipped in a warlike

f the limits of the United States.

689

§ 402.] NEUTEALITY. [CHAP. XXI

'^It rests with the wisdom of Congress to correct, improre, or enforce
this plan of procedure ; and it will probably be found expedient to ex^
tend the legal code and the jurisdiction of the courts of the Unit^
States to many cases which, though dependent on principles already
recognized, demand some further provisions.

^^ Where individuals shall, within the United States, array themselre^
in hostility against any of the powers at war, or enter upon milita^
expeditious or enterprises within the jurisdiction of the United States,
or usurp and exercise judicial authority within the United States, or
where the penalties on violations of the law of nations may have been
indistinctly marked or are inadequate, these offenses cannot receive
too early and close an attention, and require prompt and decisive rem-
edies.

^' Whatsoever these remedies will be, they will be well administered
by the judiciary, who possess a .long-established course of investigatioD,
effectual process, and officers in the habit of executing it.

*^ In like manner, as several of the courts have doubted, under par-
ticular circumstances, their power to liberate the vessels of a nation at
peace, and even of a citizen of the United States, although seized nnder
a false color of being hostile property, and have denied their powers to
liberate certain captures within the protection of our territory, it woald
seem proper to regulate their jurisdiction in these points. But if the
Executive is to be the resort in either of the two last-mentioned cases,
it is hoped that he will be authorized by law to have facts ascertained
by the courts when for his own information he shall require it"

Preaident Washington, Fifth Annnai Address, 1793. 1 Am. St Pap. (For. Bel)?
21.

President Washington's proclamation of December 3, 1793, which ^'
the second of the Series of important papers issued during his adminis-
tration settling neutral rights, as now generally understood, declared
that *' whosoever of the citizens of the United States shall render bim*
self liable to punishment or forfeiture under tibe law of nations by com-
mitting, aiding, or abetting hostilities against any of the said powers^
or by carrying to them any of those articles which are deemed contr^
band by the modem usage of nations (the italics as in original) willD^^
receive the protection of the United States,^ etc. The period fixed by tb®
definition, therefore, was before the expansion of the term in the ^^
that ensued.

1 Am. St. Pap. (For. Bel.), 140.

•

Mr. Hamilton, in his essays entitled Pacificus, published in expo^V
tion of President Washington's " neutrality^' proclamation of 1793, to^Tf
the ground that all treaty-making and war powers are Executive V^\Z.
rogatives and belong to tiie President of the United States, except ^^
far as limited by the Constitution. He insisted, therefore, that t!*^^
proclamation in question was not merely an exposition of the intentii'^^
of the Executive to enforce the laws, but an authoritative annoant
ment of the position to be taken by the United States as to foreign po'-^
ers. Mr. Madison's reply, published shortly after over the name ^^

590

CHAP. XXI.] DEGEEB OF VIGILANCE TO BE EXERCISED. [§ 402.

Hdvidius, maintained that treaty-making and war-making are attri-
butes of sovereignty which, in popular governments, are in the natnre
of laws, to be enacted by th6 legislatare and enforced by the Executive.
From his argument the following passages are extracted :

'*If we consult for a moment the nature and operation of the two pow-
ers to declare war and to make treaties, it will be impossible not to see
that they can never fall within a proper definition of executive powers.
The natural province of the Executive Magistrate is to execute laws, as
that of the legislature is to make laws. All his acts, therefore, properly
execative, must presuppose theexistence of the laws to be executed. A
treaty is not an execution of laws ; it does not presuppose the existence
of laws. It is, on the contrary, to have itself the force of a lawj and to
be carried into execution^ like all other lawSy by the Executive Magistrate.
To say, then, that the power of making treaties, which are confessedly
laws, belongs naturally to the department which is to execute laws, is
to say that the executive department naturally includes a legislative
power. • • • In the general distribution of powers, we find that
of declaring war expressly vested in the Congress, where every other
legislative x>ower is declared to be vested ; and without any other qual-
ification than what is common to every other legislative act. The con-
Btitutional idea of this power would seem, then, clearly to be that it is of
a legislative and not of an executive nature. • • • The power of
treaties is vested jointly in the legislature and the Senate, which is a
branch of the legislature. From this arrangement, merely, there can be
1)0 inference that would necessarily exclude the power from the Execu-
tive class ; since the Senate is joined with the President in another
power, that of appointing to offices, which, so far as relates to executive
offices at least, is considered as of an executive nature. Yet, on the
other hand, there are sufficient indications that the power of treaties is
i^gaided by the Constitution as materially different from mere execu-
tive power, and as having more affinity to the legislative than to the
^ecative character. One circumstance indicating this, is the consti-
tutional regulation under which the Senate give their consent in the
^8e of treaties. In all other cases the consent of the body is expressed
by a majority of voices. In this particular case a concurrence of two-
^hirdg at least is made necessary, as a substitute or compensation for
the other branch of the legislature, which, on certain occasions, could
K^ot be conveniently a par^ to the transaction. But the conclusive cir-
^Qmstance is that treaties, when formed according to the constitutional
^ode, are confessedly to have the force and operation of lawe^ and are to be
^ role for the courts in controversies between man and man as much as
^y other laws. They are even emphatically declared by the Oon stitution
-o be * the supreme law of the land.^ "

1 Madison's Wiithigs, 614/.

Mr. Hamilton, in Pacificus, argued that the clause declaring that
^ the President shall receive ambassadors, other public ministers, and
^^onsuls," might be so construed as to give the Executive the power "of
Pjitting the United States in a condition to beconie an associate in war.'^
^ ftiis Mr. Madison, in Helvidius, replied by quoting and adopting
"^tie following from No. 69 of the Federalist, written by Mr. Hamilton :
**The President is also to be authorized to receive ambassadors and
^ther public ministers. This, though it has been a rich theme of decla-
ration, is more a matter of dignity than of authority. It is a circum-
stance that will be without consequence in the administration of the

591

^ 402.] NEUTRALITY. [CHAP. XX

Government, and it is far more convenient that it should be arrange
in this manner, than that there shoold be a necessity of convening tb
legislature or one of its branches' upon every arrival of a foreign mii
ister, though it were merely to take the place of a departed predecessor.

Mr. Madison proceeded to comment as follows :

^^ When a foreign minister presents himself, two questions immediatel
arise : Are his credentials from the existing and acting Government c
his country t Are they perfectly authenticated t These question
belong of necessity to the Executive ; but they involve no cognizance c
the question whether those exercising the Government have the rigb
along with the possession. This belongs to the nation, and to the natia
alone, on whom the Government operates. The questions before tk
Executive are merely questions of fact, and tlie Executive ijoould ha^
precisely the same rights or ratJifir^ he under the same necessity^ ofdecidiw
them J if its function was simply to receive without any discretion to reje
public minisiersJ^

1 Madison's Writings, 632/.

Mr. Madison's construction of this particular clause is no doubt log
cally correct. But at the same time, as Mr. Madison was among tbe firs
practically to assert, it is a function of the Executive primarily to de
termine the question of recognition of foreign revolutionary movements
either as belligerents or Governments. See supra^ §§ 87, 137.

On the question how far the proclamation of April 22, 1703, was meant
to be a settlement of the relation of the United States to the belllgereot
powers, and not simply the views of the Executive as to such relation,
we have the following letter from Mr. Jefferson to Mr. Madison of Jane
23, 1793:

** The proclamation as first proposed was to have been a declaration
of neutrsdity. It was opposed on these grounds : (1) That a declaration
of neutrality was a declaration that there 8houla>be no war, to vfhich
the Executive was not competent ; (2) that it would be better to bold
back the declaration of neutrality as a thing worth something to the
powers at war — that they would bid for it, and we might reasonably
ask for it tlie broadest privileges of neutral nations. The first objection
was so far respected as to avoid inserting the term neutrality ; and the
drawing of the instrument was left to Edmund Bandolph. That there
should be a proclamation wa« passed unanimously, with the approba-
tion or acquiescence of all parties."

3 Hiyes' Madison, 325.

<^ A contest in the arena of the public press between two such cbao-
pious could not fail to draw the earnest attention of their contempor^
ries, for, though they engaged with vizors down, they were easily rw*
ognized by the superior temper and polish of their weapons and th6
practiced skill with which they were wielded. Mr. Madison embarked
in it, as we have seen, with great reluctance. His habitual aversion^
controversy was in this instance increased by his knowledge of the p^'
ticular character of his adversary. * One thing that particularly vex«s
me,' he said in an unreserved letter to a friend, < is that I forekoo^^
from the prolixity and tenacity of the writer, that the business wiM ^^
be terminated by a single fire, and, of course, that I must return to w«
charge in order to prevent a triumph without a victory.' Happily? ^^
was relieved from this annoyance. Pacificus attempted no reply, ^^
the apologetic suggestion of one connected with him by the closest r^
lations, that the papers of Pacificus, being written amid haratfW*^

692

[AP. Xxi.] DEGREE OF VIGILANCE TO BE EXEECISED. [§ 402.

res and vexations, may be liable to some ^ little cavils,' would lead to
B conclusion that, if no reply to Helvidius was attempted, it was
im the consciousness that none could be successfully made."

Mr. Rives iu 3 Rives' Madison, 354, 355.

Mr. Hildreth (4 Hist. U. S., 429), following the line of the extreme
^deralists, thus states the issue: ^^ Hamilton took the field in defense
the proclamation of neutrality in a series of articles under the sig-
itore of Pacificus, in which he maintained with great ability not only
e policy of that measure, but the President's right, by its issue, to
^ide upon the position in which tlie nation stood." As to this, it is
» be observed that the proclamation carefully avoided the use of the
^rm ^< neutrality," ndr did it undertake to state what were the relations
r the country as to peace or war, or what should be the compacts en-
^d into by it with foreign states. The proclamation rested on the
Bsumption that war with foreign countries could be declared only by
'Ongress, and that treaties required for their adoption the action of
^resident and Senate. All that the proclamation stated was the de-
enniDation of the President not to create neutrality, but 'to perform
nch neutral duties as were imposed on him by law.

Afl to the controversy in the Cabinet on the question how far our treaty rela-
tions to France were a£fected by the French revolution, see supra, $$ 137, 148.

The note of Mr. Bandolph, Sec. of State, to Mr. Hammond, British minister, of
June 2, 1794, vindicating the neutral action of the United States Govern-
ment, is found in 1 Am. St. Pap. (For Bel.), 4G4.

The execution of the neutrality laws was at first left to the State
xecQtives, on the appeal of the President. ^' The militia of Richmond,
iiTirginia, actually marched, at a moment's warning, between seventy
Jud eighty miles, to seize a vessel supposed to be under preparation as
* French privateer. Eesistance was at first apprehended, but it was
verawed, and the business completely effected."

Hr. Bandolph, Sec. of State, to Mr. Pinckney, Aug. 11, 1794. MSS. Inst., Min-
isters.

^^The extent of the United States imposes the necessity of snbsti-
Qting the agency of the governors in the place of an instantaneous
^tion of the Federal Executive, and therefore general rules alone can
» provided."

Hr. Bandolph, Seo. of State, to Mr. Fanchet, Oct. 22, 1794. MSS. Notes, For.
Leg. 1 Am. St. Pap. (For. Bel.), 589.

Duress cannot be set up by a sovereign when charged with breach of
^Qutrality unless it ^' be shown that the force or danger which destroyed
^^ free agency really existed, and that all reasonable means were em-
%ed to prevent or remedy the evil resulting."

Hr. Madison, Sec. of State, to Mr. C. C. Pinckney, Oct. 25, 1802. Same to same,
Feh. 6, 1804. MSS. Inst., Ministers. See supra, $$ 17. 60/.

Uisno defense that the breaches of neutrality were committed by
*^ alien resident.

Same to same, Oct. 25, 1802. Mr. Madison to Mr. Monroe, Oct. 25, 1804. * MSS.
Inst., Ministers. See supra^ $ 205

8. Mis. 162— VOL. Ill 38 593

§ 402.] NEUTRALITY. [CHAP. XXI.

" We have seen with sincere concern the flames of war lighted np-
again in Europe, and nations with which we have the most friendly and
usefal relations engaged in mutual destruction. While we regret the-
miseries in which we see others involved, let us bow with gratitude to
that kind Providence which, inspiring with wisdom and moderation our
late legislative councils while placed under the urgency of the greatest
wrongs, guarded us from hastily entering into the sanguinary contest^
and left us only to look on and to pity its ravages. These will be heav- _
iest on those immediately engaged. Yet the nations pursuing
will not be exempt from all evil. In the course of this conflict let it
our endeavor, as it is our interest and desire, to cultivate the friendshi^^

of the belligerent nations by every act of justice and of innocent kind

ness ; to receive their armed vessels with hospitality irom the di^^
tresses of the sea, but to administer the means of annoyance to none^:
to establish in our harbors such a police as may maintain law and ordccr-^ .
to restrain our citizens from embarking individually in a war in whi<^>2
their country takes no part ; to punish severely those persons, citizen ^c^r
alien, who shall usurp the cover of our flag for vessels not entitled to -S. ^
infecting thereby with suspicion those of real Americans, and commrB^t-
ting us into controversies for the redress of wrongs not our own; ^o
exact from every nation the observance, toward our vessels and cL'^- .
zens, of those principles and practices which all civilized people ^m^
knowledge ; to merit the character of a just nation, and maintain ttrst
of an independent one, preferring every consequence to insult e^Tid
habitual wrong. Congress will consider whether the existing laws en-
able us efiQcaciously to maintain this course with our citizens in ^1
places, and with others while within the limits of our jurisdiction, »sd
will give them the new modifications necessary for these objects. SoKi^
contraventions of right have already taken place, both within our ju:^^
dictional limits and on the high seas. The friendly disposition of 'fc'b^
Governments from whose agents they have proceeded, as well as tlM^^
wisdom and regard for justice, leave us in reasonable expectation tK>ftt
they will be rectified and prevented in future^ and that no act will ^
countenanced by them which threatens to disturb our friendly in^^e^'
course. Separated by a wide ocean from the nations of Europe, ^mJii
from the political interests which entangle them, together with prodcs^^
and wants which render our commerce and friendship useful to th^-^oi
and theirs to us, it cannot be the interest of any to assail us, nor o^u*
to disturb them. We should be most unwise, indeed, were we to <s^
away the singular blessings of the position in which nature has placed
US, the opportunity she has endowed us with of pursuing, at a dist&o^
from foreign contentions, the paths of industiy, peace, and happiaess;
of cultivating general friendship, and of bringing collisions of intereBt I
to the umpirage of reason rather than of force.''

President Jefferson, Third Annual Message^ 1803.

594

C:BIP. XXI.] DEGREE OF VIQILANCE TO BE EXERCISED. [§ 402.

In a letter of Mr. Madison, Secretary of State, to Mr. Armstrong,
arcb 14. 1806, the conrse of the United States Gorernment in respect
liiranda's expedition is detailed^ and it is sbown that the Govern-
cut took prompt measures to suppress that expedition.

Aa to Miranda's expedition, see guprOf $ S95a; it^fra, ( 404.

*^.It is found that the existing laws have not the efficacy necessary to
prevent violations of the obligations of the United States as a nation
at peace toward belligerent parties, and other unlawful acts on the high
seas, by armed vessels equipped within the waters of the United States.

''With a view to maintain more effectually the respect due to the
laws, to the character, and to the neutral and pacific relations of the
United States, I recommend to the consideration of Congress the expe*
diency of such further legislative provisions as may be requisite for
detaining vessels actually equipped, or in a course of equipment, with a
warlike force, within the jurisdiction of the United States; or, as the
<^&8e may be, for obtaining from the owners or commanders of such
vessels adequate securities against the abuse of their armaments, with
t^Q exceptions in such provisions, proper for the cases of merchant
^Qssels furnished with the defensive armaments usual on distant and
^^gerous expeditions, and of a private commerce in military stores
l^^itted by our laws, and which the law f f nations does not require
*© United States to prohibit.''

President Madison, message of Deo. S6, 1816. 11 Wait's St. Pap., 203. As to
anning merchant vessels, see stipra, ( 39.

''In addition to the letter I wrote to you on the 6th, in reply to the
^^e which you wrote to me on the Ist instjant, I have the honor to state
^at information has been received at this Department, from various
Purees, that vessels have been armed and equipped in our ports for
^^e purpose of cruising against the commerce of nations in amity with
^l^e United States, and no doubt is entertained that this information
^^ in some instances correct. The owners of these vessels have, how.
^^er, generally taken care so to conceal these armaments and equip-
ments, and the object of them, as to render it extremely difficult, under
^^ting circumstances, to prevent or punish this infraction of the law.
It has been represented —

^'First. That vessels belonging to citizens of the United States or
^oi^igners have been armed or equipped in our ports, and have cleared
^Ot from our custom-houses as merchant vessels, and, after touching at
^tber ports, have hoisted the flag of some of the belligerents, and cruised
^^der it against the commerce of nations in amity with the United
States.

^ Secondly. That in other instances, other vessels, armed and equipped
^ our ports, have hoisted such flags after clearing out and getting to
^^ and have in like manner cruised against the commerce of nations
^ amity with the United States, extending their depredations in a few
^^^Bes to the property of citizens of the United States.

505

^ 402.] KEUTBALITY. [CHAP. XX

^< Thirdly. That in other instances, foreign vessels have entered th
ports of the United States, and, availing themselves of the privilege
allowed by oar laws, have in various modes augmented their arms
ments with pretended commercial views; have taken on board citizen
of the United States as passengers, who, on their arrival at neatra
ports, have assumed the character of officers and soldiers in the servic
of some of the parties in the contest now prevailing in our southeri
hemisphere.

<< Information, founded upon these representations, has from time t
time been given to the attorneys and collectors of the respective di&
tricts in which the armaments are stated to have been made, but fron
the difficulty of obtaining the necessary evidence to establish facts oi
which the law would operate few prosecutions have been instituted.

**In reply to your second inquiry, I beg leave to refer to the comma
nication from the Secretary of the Treasury to the Oommittee of Wayi
and Means, during the last session of Congress, in the case of tbi
American Eagle, and to the papers inclosed herewith."

Mr. Monroe, Sec. of State, to Mr. Forsyth, Jan. 10, 1817. 4 Am. St. Pap. (Fos
Bel.), 104.

<<It was anticipated at an early stage that the contest between Spaa
and the colonies would becctaie highly int/cresting to the United States
It was natural that our citizens should sympathize in events whic
affected their neighbors. It seemed probable also that the prosecatic
of the conflict along our coasts and in contiguous countries woald c^
casionally interrupt our commerce and otherwise affect the persons asc
property of our citizens. These anticipations have been realized. Sa «
injuries have been received from persons acting under the authority <
both the parties, and for which redress has in most instances been wifc
held. Through every stage of the conflict the United States have ma3
tained an impartial neutrality, giving aid to neither of the parties in mes
money, ships, or munitions of war. They have regarded the cont^
not in the light of an ordinary insurrection or rebellion, bat as a ci^
war between parties nearly equal, having, as to neutral powers, eqv^
rights. Our ports have been open to both, and eveiy article, the fir^
of our soil or of the industry of our citizens, which either was permit^
to take, has been equally free to the other. Should the colonies est^
lish their independence, it is proper now to state that this Govemm^
neither seeks nor would accept from them any advantage in comme--^^
or otherwise which will not be equally open to all other nations,
colonies will in that event become independent states, free from
obligation to or connection with us which it may not then be tl
interest to form on the basis of a fair reciprocity."

President Monroe, First Annnal Message, 1817.

^< The Government of the United States, having used all the meaim^ ^
its power to prevent the fitting out and arming of veseels (in this €»S0

696

CHAP. XXL] degree OF VIGILANCE TO BE EXERCISED. [§ 402.

priyateers under Soath American flags, but alleged to have been manned
with American citizens to cruise against Portugal) in their ports to cruise
against any nation with whom they are at peace, and having faiMifully
carried into execution the laws enacted to preserve inviolate the neutral
and pacific obligations of the Union, cannot consider itself bound to
indemnify individaal foreigners for losses for captures over which the
United States have neither control nor jurisdiction."

Mr. Adams, Sec. of State, to Mr. Correa de Serra, Mar. 14, 1818. MSS. Notes,
For. Leg.

^^£y the usual principles of international law, the state of neutrality
recognizes the caase of both parties to the contest as just; that is, it
aT-oids all consideration of the merits of the contest. But when, aban-
doning that neutrality, a nation takes one side in a war of other parties,
the first question to be settled is the justice of the cause to be assumed.
If the Eui*opean allies are to take side with Spain, to reduce her South
American colonies to submission, we trust they will make some previous
inquiry into the justice of the cause they are to undertake. As neutrals
we are not required to decide the question of justice. We are sure we
should not find it on the side of Spain."

Mr. Adams, Sec. of State, to Mr. Gallatin, May 19, 1818. MSS. Inst., Ministers.

*'In the civil war existing between Spain and the Spanish provinces
^^ this hemisphere, the greatest care has been taken to enforce the
^^^8 intended to preserve an impartial neutrality. Our ports have been
^<liially open to both parties, and on the same conditions, and our citi-
*^8 have been equally restrained from interfering in favor of either, to
^e prejudice of the other. The progress of the war, however, has oper-
^t^ manifestly in favor of the colonies. Buenos Ayres still maintains
^i^sbaken the independence which it declared in 1816, and has enjoyed
^tice 1810. Like success has attended Ohili and the provinces north of
^lie La Plata bordering on it, and likewise Venezuela.^

Preudent Monroe, Third Annual Message, 1819.

'*Iq the existing unfortunate civil war between Spain and the South
-American provinces, the United States have constantly avowed and
^ithfally maintained an impartial neutrality. TSo violation of that
^^^utrality, by any citizen of the United States, has ever received sanc-
tion or countenance from this Government. Whenever the laws, pre-
^oudy enacted for the preservation of neutrality, have been found, by
^^perience, in any manner defective, they have been strengthened by
^©w provisions and severe penalties. Spanish property, illegally capt-
^r^d, has been constantly restored by the decisions of the tribunals of
^he United States ; nor has the life itself been spared of individuals
Kuilty of piracy, committed upon Spanish property on the high seas.^

Mr. Adams, See. of State, to Mr. Yives, May 3, 1820. MSS. Notes, For. Leg.

597

§ 402.] NEUTRALITY. [CHAP. XXI.

^< This contest was considered at an early stage by my pre decessor a
civil war in which the parties were entitled to eqaal rights in carports.
This decision, the first made by any power, being formed on great con*
sideration of the comparative strength and resoarces of the parties, the
length of time, and successfal opposition made by the colonies, and of
all other circamstances on which it oaght to depend, was in strict ac-
cord with the law of nations. Congress has invariably acted on this
principle, having made no change in oar relations with either party.
Oar attitade has, therefore, been that of nentrality between them, which
has been maintained with the strictest impartiality. No aid has been
afforded to either, nor has any privilege been enjoyed by the one which
has not been eqaally open to the other party, and every exertion has
been made in its power to enforce the execntion of the laws prohibiting
illegal equipments with eqaal rigor against both.

^' By this equality between the parties their pablio vessels have been
received in oar ports on the same footing; they have enjoyed an eqaal
right to purchase and export arms, munitions of war, and every other
supply, the exportation of all articles whatever being permitted under
laws which were passed long before the commencement of the contest ;
our citizens have treated equally with both, and their commerce with
each has been alike protected by the Government.

'' Bespecting the attitude which it may be proper for the United States
to maintain hereafter between the parties, I have no hesitation in stat-
ing it as my opinion that the neutrality heretofore observed should still
be adhered to. From the change in the Government of Spain and the
negotiation now depending, invited by the Cortes and accepted by the
colonies, it may be presumed that their differences will be settled on the
terms proposed by the colonies. Should the war be continued, the Uni-
ted States, regarding its occurrences, will always have it in their power
to adopt such measures respecting it as their honor and interest may
require."

President Monroe, Second Inangaral Address, 1821.

'^ The attention of this Government has been drawn with great soUci-
tude to other subjects, and particularly to that relating to a state of
maritime war, involving the relative rights of neutral and belligerent
in such wars. Most of the dif&culties which we have experienced, and of
the losses which we have sustained, since the establishment of oar inde-
pendence, have proceeded from the unsettled state of those rights and
the extent to which the belligerent claim has been carried against the
neutral party. It is impossible to look back on the occurrences of the
late wars in Europe, and to behold the disregard which was paid to our
rights as a neutral power, and the waste which was made of our com-
merce by the parties to those wars, by various acts of tOuiiriQespeetir^
Governments, and under the pretext by each that the other had set t)xi^

598

CHAP.- XXI.] DEGREE OP VIGILANCE TO BE EXERCISED. [§ 402.

-example, withoat great mortification, aud a fixed parpose never to sub*
mit to the like in fatnre.''

President Monroe, Eighth Annual Message, 1824.

The efforts made by the United States to maintain neutrality in the contest be-
tween Spain and Portngal, on the one side, and the South American colo-
nies, on the other, in connection with the various political influences to
which the administration was exposed, are discussed supra, $$71, 7% 161a.
See also Mr. Dana's notes to Wheaton, $ 440.
^ In the 4th and 5th yolumes of Mr. J. Q. Adams' Memoirs will be found much

interesting information on this topic.

As to the bearing of the Monroe doctrine on this question, see aupra, $} 57,
71. 72.

As to limits of United States neutrality in war between Mexico and Texas, see
Mr. Forsyth, Sec. of State, to Mr. EUis, Dec. 9, 1836. MSS. Inst., Mex. ;
$upra, $$58, 248d.

As to neutrality in respect to Mexico, see report of Mr. Forsyth, Sec. of S.tatey
Jan. 8, 1838, House Doc. 74, 25th Cong., 2d sess.

The President's proclamation in 1838, in respect to the Canadian troubles, will
be found in the Brit, and For. St. Pap., 1849-^50, vol. 38, 1074.

The message of President Van Bnren, Jan. 8, 1838, as to breaches of neutrality
on our northern frontier, will be found in House Ex. Doc. 73, 25th Cong.,
2d

" Depredations by oar citizens upon nations at peace with the United
States, or combinations for committing them, have at all times been
regarded by the American Government and people with the greatest
abhorrence. Military incursions by our citizens into countries so situ-
ated, and the commission of acts of violence on the members thereof, in
order to effect a change in its Government, or under any pretext what-
ever, have, from the commencement of our Government, been held
equally criminal on the part of those engaged in them, and as much
deserving punishment as would be the disturbance of the public peace
by the perpetration of similar acts within our own territory."

President Van Bnren, Second Annual Message, 1838.

The President's proclamation of Aug. 11, 1849, as to threatened inyasion of

Cuba and Mexico is found in the Brit, and For. St. Pap., 1849-'50, toI.

39, 77.

'^ Although these offenders against the laws have forfeited the pro-
tection of their country, yet the Government may, so far as is consist-
ent with its obligations to other countries, and its fixed purpose to
maintain and enforce the laws, entertain sympathy for their unoffend-
ing families and friends, as well as a feeling of compassion for them-
selves. Accordingly no proper effort has been spared, and none will
he spared, to procure the release of such citizens of the United States,
^ligaged in this unlawful enterprise, as are now in confinement in Spain;
but it is to be hoped that such interposition with the Government of
tliat coantry may not be considered as affording any ground of expecta-
^ou that the Government of the United States will, hereafter, feel
itaelf under any obligation of duty to interfere for the liberation or

599

§ 402.] NEUTRALITY. [CHAP. XXI.

pardon of sach persons as are flagrant offenders against the law of
nations and the laws of the United States. Those laws most be exe.
cnted. If we desire to maintain oar respectability among the nations
of the earth, it behooves ns to enforce steadily and sternly the nentral-
ity acts passed by Congress, and to follow, as far as may be, the viola-
tion of those acts with condign punishment.

'^ Bat what gives a peculiar criminality to this invasion of Gnba is
that, under the lead of Spanish sabjectB and with the aid of citizens of —
the XJnited States, it had its origin with many in motives of cupidity.
Money was advanced by individuals, probably in considerable amounts,,
to purchase Ouban bonds, as they have been .called, issued by Lopez,
sold, doubtless, at a very large discount, and for the payment of which
the public lands and public property of Cuba, of whatever kind, and
the 9scal resources of the people and Government of that island, from
whatever source to be derived, were pledged, as well as the good faith
of the Government expected to be established. All these means of pay-
ment, it is evident, were only to be obtained by a process of bloodshed, .
war, and revolution. None will deny that those who set on foot military
expeditions against foreign states by means like these are far more cul--
pable than the ignorant and the necessitous whom they induce to
forth as the ostensible parties in the proceeding. These originators ol
the invasion of Cuba seem to have determined with coolness and systei
upon an undertaking which should disgrace their country, violate it
laws, and put to hazard the lives of ill-informed and deluded mei
You will consider whether further legislation be necessary to preven ^m\>
the perpetration of such offenses in future.

<'No individuals have a right to hazard the peace of the country or t*
violate its laws upon vague notions of altering or reforming Gtoveri
ments in other states. This principle is not only reasonable in itsel
and in accordance with public law, but is ingrafted into the codes
other nations as well as our own. But while such are the sentiments
this Government it may be added that every independent nation mat
be presumed to be able to defend its possessions against ueauthorize^^^sed
individuals banded together to attack them. The Government of tlcf c&he
XJnited States at all times since its establishment has abstained
has sought to restrain the citizens of the country from entering inl
controversies between other powers and to observe all the duties c
neutrality. At an early period of the Government — ^in the administr;
tion of Washington — several laws were passed for this purpose,
main provisions of these laws were re-enacted by act of April, 1S18,
which, amongst other things, it was declared that if any person 8hal<
within the territory or jurisdiction of the United States, begin or set
foot or provide or prepare the means for any military expedition or
teri)rise to be carried on from thence against the territory or dominii
of any foreign prince or state, or of any colony, district, or people
whom the United States are at peace, every person so offending si

600

CXBAP. XXI.] DEGREE OF VIGILANCE TO BE EXERCISED. [§ 402:

l>o deemed gailty of a high misdemeanor, and shall be fined not exceed-
io£ three thousand dollars and imprisoned not more than three years;
VLMX4i this law has been executed and enforced to the full extent of tho-
po^er of the Government from that day to this.

'^^n proclaiming and adhering to the doctrine of neutrality and non-
intervention the United States have not followed the lead of other civi-
lized nations ; they have taken the lead themselves, and have been fol-
lo^^ed by others. This was admitted by one of the most eminent or
modern British statesmen, who said in Parliament, while a minister of
tbe Crown, ' that if he wished for a guide in a system of neutrality he
slioold take that laid down by America in the days of Washington and
ttie Secretaryship of Jefferson' ^ and we see, in fact, that the act of Gon^
gx-ess of 1818 was followec} the succeeding year by an act of the Parlia-
ment of England substantially the same in its general provisions. Up
to that time there had been no similar law in England, except certain
^i^lily penal statutes passed in tlie reign of George 11, prohibiting Eng-
lish subjects from enlisting in foreign service, the avowed object of
^hich statutes was that foreign armies, raised for the purpose of restor-
^Q^tbe house of Stuart to the throne, should not be strengthened by
'^crnits from England herself.

**A11 must see that difficulties may arise in carrying the laws referred
^^ into execution in a country now having three or four thousand miles^
^^ 8eacoast, with an infinite number of ports and harbors and small ii^-
^^t^, from some of which unlawful expeditions may suddenly set forth,.
^ithout the knowledge of Government, against the possessions of for-
^^en states."

Presideot Fillmoro, Second Annual Message, 1851; Mr. Webster, Sec. of State.

^*In reply the undersigned has to acquaint General Almonte that

^^re is no law of the United States which authorizes the refusal of a

p^^arance to a vessel bound to a port in a state of insurrection, or the

^^^ position of any penalty for the entrance of a United States vessel

"*^1^ such a port for commercial purposes only. Thp just belligerent

■^Shts, however, of all powers, engaged in civil or foreign war, so far as

_*^^D8e rights may be invaded by citizens of the United States, are, it ia

loeived, amply protected by the act of Congress of the 20th of April,

US.'' .

Mr. Marcy, Sec. of State, to Mr. Almonte, May 14, 1855. MSS. Notes, Mex.

* * A grand jury of this country having presented yourself and Colonel

xmey for a violation of our laws in getting up the expedition. Colonel

^Dey having evaded trial by leaving the United States, and the Gov*

tent of Nicaragua having declared it to be an intended hostile in-

don of its territories, you ought not to indulge the slightest expec-

ion that this Government could be iuduced to aid or countenance

^^^ enterprise. In view of what has already been disclosed, the Gov-

^^^^^mnent canoot assume as an undoubted fact, and act upon it as such,.

601

§ 402.] NEUTRALITY. [CHAP. X

your declaration that your UDdertaking is conformable to the laws
your own country and not liable to objection from the authorities of i
country which is the seat of your contemplated operations.

" This Government acknowledges it to be a duty to protect the rig
of its citizens engaged in lawful pursuits abroad from tyrannical pow
and will not shrink from the performance^ of that duty on any and
proper occasions ; but it does not believe that you present a case wh
this duty arises.

<<It has also another duty to perform not at all incompatible with f
former; it is to maintain friendly relations with all foreign powers, a
to discountenance and repress^ when illegal, all enterprises designed
disturb the safety or tranquillity of any other state.

^* I am aware that civil discord now prevails in the Bepublic of liS
aragua, and it is natural to conclude that what one party oppose anoti
may favor. While this Government l^elieves it prudent to abstain fr
interfering as far as practicable with these internal divisions, yet it e
not decline, in certain emergencies, to decide who possess the politi
power of the state. Our minister in Nicaragua has regarded the
thorities which issued the proclamation against your expedition to Ik
possession of the executive power of Nicaragua; he has been reoeii
by and has treated with them as the Government of that country, a
has lately negotiated a treaty with them. This fact has an importa
bearing on the subjects presented in your letter of the 26th instai
and sustains the positions I have taken in this reply to it.''

Mr. Marcy, Sec. of State, to Mr. Fabers, Jane 29, 18S5. MSS. Dom. Let

^^The Government of the undersigned regrets that persons whoznaj
owe it either temporary or permanent allegiance should proceed bou
the United States to.any foreign country for hostile purposes, and a<^
knowledges its obligation to prevent this misdemeanor by all propei
means. The laws of the United States by which this policy and obli-
gation are declared and acknowledged are believed to be ample fot
their purpose. Circumstances, however, imputable neither to the in-
adequacy of those laws nor to the want of good faith in the persons
<}harged with their administration, may occasionally enable offenders
to escape detection.''

Mr. Marcy, Sec. of State, to Mr. Molina, Dec. 10, 1855. MSS. Notes, Ceot. AiB'

" The United States gave an early example to other nations in rega^
to its neutral duties by enacting stringent neutrality laws; they cer-
tainly preceded Great Britain in legislation upon the subject Tbeee
laws have laid upon the citizens or residents of the United States sncb
restraints as neutral obligations towards other states require, or ^
compatible with the spirit of free Institutions. They prohibit enlis*"
ments for foreign service within the limits of the United States, or bs\7
agreement to go beyond those limits, for the purpose of such enli^
jnents ; they denounce, under heavy penalties, the fitting out of pri^

602

CHAP. XXI.] DEGREE OF VIGILANCE TO BE EXERCISED. [§ 402.

teers or the orgaDiziDg any expeditions against foreign states or their

territories. Mr. Molina will find it difficult to show an instance in which

any other coantry, including his own, has done more by legislation than

the United States to preserve with fidelity neutral relations with other

IK)wers. The execution of these laws is all that can be required of this

Qovemment in maintaining its foreign relations."

Mr. Marcy, Sec. of State, to Mr. Molina, Apr. 25, 1856. MSS. Notes, Cent. Am.
In Mr. Case's instrnctions of July 25, 1858, to Mr. Lamar (MSS. Inst., Cent. Am.),

the vigilance and good faith of the United States in patting down filibos-

tering preparations in Nicaragua is shown in detail.

^'A Government is responsible only for the faithful discharge of its
international duties, but not for the consequences of illegal enterprises
of which it had no knowledge, or which the want of proof or other cir«
^nmstanees rendered it unable to prevent

Mr. Cass, Sec. of State, to Mr. Molina, Nor. 26, 18(50. MSS. Notes, Cent. Am.

It is within the competency of a WUigerent to place, as a war measure,
the export of anthracite coal under such limitations as would most cripple
its antagonist.

Mr. Seward, Seo. of State, to Mr. Stuart, Oct. 3, 1862. MSS. Notes, Gr. Brit.
Mr. Seward to Lord Lyons, Jan. 9, 1863 ; ibid. Same to 8ame,Mar. 18, 1864, ibid;
see 9upra, $ 369.

When notified of the Crimean war, the Secretary of State informed
the French minister at Washington ^< that the laws of the United States
^posed severe restrictions not only upon its own citizens, but upon all
Persons who might be resident in this country, against equipping priva-
I teers, receiving commissions, or enlisting men therein, for the purpose
of taking a part in any foreign war ; that it was not apprehended that
there would be any attempt to violate these laws, but should the just
fetation of the President be disappointed, he would not fail in his
daty to use the power with which he was invested to enforce obedience
to them.''

Mr. Seward, Seo. of State, to Mr. Dayton, Oct. 24, 1863. MSS. Inst., France.

While objecting to a continuance granted by the presiding judge in
the trial of the case of Bumble, tried and acquitted in England in 1865
for breach of neutrality laws, 'Hhe Government acknowledges that it
does not otherwise find any sufQcient ground for questioning the learn-
^g or impartiality of the presiding judge in the conduct of the trial."

Mr. Seward, Seo. of State, to Mr. Adams, Mar. 21, 1865. MSS. Inst, Gr. Brit.

Persons and vessels arrested under order of the President for breach
of neutrality may be detained by the naval forces of the United States,
Mer his directions, until lawfully discharged.

Mr. Fish, Sec. of State, to Mr. Edwards, Jane 29, 1869. MSS. Dom. Let.

^'It is impossible not to compare and contrast the conduct of the
states-general as regards Great Britain, on occasion of the revolt of

^ 402.] NEUTRALITY. [CHAP. X

the Britislx colonies^ with that of Great Britaia as regards the insan
tion in the Soathern States. No fleets were fitted out by America in
ports of the Netherlands to prey on the commerce of Great Brits
Only in a single instance did American cruisers have temporary h
borage in the Texel. Year after year the exports of munitions of \
from the Netherlands were forbidden by the states-general, the m
completely to fulfill their duty of amity and neutrality towards Gr^
Britain. But, nevertheless, Great Britain treated a declaration of ni
traUty by the states-general, and the observance of that declaration,
a sufficient cause of war against the Netherlands, prior to which t
British Government continually complained of the occasional suppl
derived by the colonies from the island of St. Eustatius. How light
this respect would have been the burdens of the United States duri
the late insurrection if British aid had been confined to a contraba
commerce between the insurgents and the port of Nassau I "

Mr. Fish, Seo. of State, to Mr. Motley, Sept. 23, 1869. MSS. Inst., Gr. Brit

. << The Government of the United States may almost be said to ha
originated the modern doctrine of the obligations of neutrals to ma
tain their neutrality. They were the first to make that intematioi
obligation the subject of a municipal law. They have been loyal to tli
doctrine throughout their history. They have suffered because oth
powers have been less loyal to it than themselves, and they have coi
tinned to maintain it throughout the present disturbances in the island
of the West Indies. If there was any neglect to properly scrutinize tb
character of these vessels in the United States, which I do not admil
it was due in the one case to the neglect of the minister of Hayti aoi
in the other case to the neglect of the Haytian consul."

Mr. Fish, Sec. of State, to Mr. Bassett, Oct. 13, 1869. MSS. Inst., Hayti.

In July^ 1869, the President issued to the district-attorney and mtf
shal for the eastern district of Kew York a commission empowerioi
them, or either of them, ^' to employ such part of the land or nava
forces of the United States, or of the militia thereof, for the parpoflei
indicated by the eighth section of the act of April 20, 1818, conunool]
known as the neutrality act"

Mr. Fish, Sec. of State, to Mr. Pierrepont, July 13, 1669. MSS. Dom. Le^

Orders were at the same time given for the capture of all conoeroe^
in expeditions violating such law.

Ibid.

See also Mr. Fish's letter to Mr. Piempont, of July 15, 1869; Mr. TUhUi^'

Barlow, July 17, 1869 ; Mr. Fish to Mr. Bobeson, Aug. 10« 1869; Ur. f^

to Mr. Barlow, Aug. 10, 1869, as to custody of gunboats seized under il^^

order. MSS. Dom. Let.
As to the subsequent destiny of these gunboats see Mr. Fish to Mr. Pierreponty

Nov. 26, 1869. Ibid.

604

CHAP. XXI.] DEGREE OF VIGILANCE TO BE EXERCISED. [J 432.

'^Whereas a state of war unhappily exists between France, on the
one side, and the North German Oonfederacy and its allies, on the other
side; and whereas the United States are on terms of friendship and
amity with all the contending powers, and with the persons inhabiting
tiieir several dominions } and whereas great numbers of the citizens of
the United States reside within the territories or dominions of each of
the said belligerents, and carry on commerce, trade, or other business
or pursuits therein, protected by the faith of treaties ; and whereas great
nombers of the subjects or citizens of each of the said belligerents reside
within the territory or jurisdiction of the United States, and carry on
commerce, trade, or other business or pursuits therein ] and whereas
the laws of the United States, without interfering with the free expres-
sion of opinion and sympathy, or with the open manufacture or sale of
arms or munitions of war, nevertheless impose upon all persons who
maybe within their territory and jurisdiction the duty of an impartial
flentrality during the existence of the contest :

"Xow, therefore, I, Ulysses S. Grant, President of the United States,
in order to preserve the neutrality of the United States and of their
citizens and of persons within their territory and jurisdiction, and to
enforce their laws, and in order that all persons, being warned of the
general tenor of the laws and treaties of the United States in this be-
balf, and of the law of nations, may thus be prevented from an uninten-
tional violation of the same, do hereby declare aud proclaim that by
the act passed on the 20th day of April, A. D. 1818, commonly known
^ the < neutrality law,' the following acts are forbidden to be done,
Qnder severe penalties, within the territory and jurisdiction of the
TJnited States, to wit :

^h Accepting and exercising a commission to serve either of the
^d belligerents by land or by sea against the other belligerent.

^^2. Enlisting or entering into the service of either of the said bellig-
^^ts as a soldier, or as a marine, or seaman on board of any vessel of
^ar, letter of marque, or privateer.

'^3. Hiring or retaining another person to enlist or enter himself in the
^rvice of either of the said belligerents as a soldier, or as a marine, or
^^an on board of any vessel of war, letter of marque, or privateer.

*^1 Hiring another person to go beyond the limits or jurisdiction of
^^ United States with intent to be enlisted as aforesaid.

^'5. Hiring' another person to go beyond the limits of the United
States with the intent to be entered into service as aforesaid.

**6. Retaining another person to go beyond the limits of the United
^^tes ynth intent to be enlisted as aforesaid.

"7. Betaining another person to go beyond the limits of the United
^^tes with intent to be entered into service as aforesaid. (But the
^id act is not to be construed to extend to a citizen or subject of either
^Ugerent who, being transiently within the United States, shall, on
^rd of any vessel-of-war, which, at the time of its arrival within the

§ 402.] NEUTEALITY. [CHAP. XXI_

United States, was fitted and equipped as such vessel of war, enlist ojm
enter himself or hire or retain another subject or citizen of the sam^
belligerent, who is transiently within the United States, to enlist or
enter himself to serve such belligerent on board such vessel-of-war, S
the United States shall then be at peace with such belligerent.)

<<8. Fitting out and arming, or attempt to fiit out and arm, or proco^:
ing to be fitted out and armed, or knowingly being concerned in
furnishing, fitting out, or arming of any ship or vessel with intent t
such ship or vessel shall be employed in the service of either of t
said belligerents.

<< 9. Issuing or delivering a commission within the territory or
diction of the United States for any ship or vessel to the intent t
she may be employed as aforesaid.

'< 10. Increasing or augmenting,* or procuring to be increased or a
men ted, or knowingly being, concerived in increasing or augmenting, ^^l
force of any shipof-war, cruiser, or other armed vessel, which at '^i(
time of her arrival within the United States was a ship-of-war, crui^bCT;
or armed vessel in the service of either of the said belligerents, or be-
longing to the subjects or citizens of either, by adding to the number
of guns of such vessels, or by changing those on board of her for gma
•f a larger caliber, or by the addition thereto of any equipment solely
applicable to war.

^< 11. Beginning or setting on foot or providing or preparing the
means for any military expedition or enterprise to be carried on from
the territory or jurisdiction of the United States against the territories
or dominions of either of the said belligerents.

" And I do further declare and proclaim that by the nineteenth ar-
ticle of the treaty of amity and commerce which was concluded between
His Majesty the King of Prussia and the United States of America^ on
the 11th day of July, A. D. 1799, which article was revived by the
treaty of May 1, A. D. 1828, between the same parties, and is still in
force, it was agreed that < the vessels-of-war, public and private, of both
parties, shall carry freely, wheresoever they please, the vessels djA
effects taken fi*om their enemies, without being obliged to pay any da-
ties, charges, or fees to officers of admiralty, of the customs, or ^7
others ; nor shall such prizes be arrested, searched, or put under any
legal process, when they come to and enter the ports of the other party?^
but may freely be carried out again at any time by their captors to the
places expressed in their commissions, which the commanding officer of
such vessel shall be obliged to show.'

''And I do further declare and proclaim that it has been offlciaOy
communicated to the Government of the United States by the envoy
extraordinary and minister plenipotentiary of the JS'orth German Con-
federation, at Washington^ that private property on the high seas ^
be exempted from seizure by the ships of Hifl Majesty the King of t^
sia, without regard to reciprocity.

606

CHAP. XXI.] DEGREE OP VIGILANCE TO BE EXERCISED. [§ 402 ♦

^^ And I do farther declare and proclaim that it has been officially
communicated to the Government of the United States by the envoy
extraordinary and minister plenipotentiary of His Majesty the Emperor
of the I'rench, at Washington, that orders have been given that, in the
condact of the war, the commanders of the French forces on land and
on the seas shall scmpalonsly observe toward nentral powers the rales
of international law, and that they shall strictly adhere to the principles
set forth in the declaration of the congress of Paris of the 16th of April,
1856, that is to say : 1st. That privateering is and remains abolished.
2d. That the neutral flag covers enemy's goods, with the exception of
contraband of war. 3d. That neutral goods, with the exception of con-
traband of war, are not liable to captare ander the enemy's flag. 4th.
That blockades, in order to be binding, must be effective, that is to say,
maintained by a force safficient really to prevent access to the coast of
the enemy ; and that, althoagh the United States have not adhered to
the declaration of 1856, the vessels of His Majesty will not seize enemy's
property found on board of a vessel of the United States, provided that
property is not contraband of war.

'*And I do farther declare and proclaim that the statates of the United
States and the law of nations alike require that no x>erson within the
territory and jarisdiction of the United States shall take part, directly
or indirectly, in the said war, but shall remain at peace with each of
the said belligerents, and shall maintain a strict and impartial neutral-
ity, and that whatever privileges shall be accorded to one belligerent
within the ports of the United States shall be in like manner accorded
to the other.

^*And I do hereby enjoin all the good citizens of the United States,
^d all persons residing or being within the territory or jarisdiction of
the United States, to observe the laws thereof, and to commit no act*
^ntrary to the provisions of the said statutes, or in violation of the law
^f nations in that behalf.

'*And I do hereby warn all citizens of the United States, and all per-
^ns residing or being within their territory or jarisdiction, that, while
the free and full expression of sympathies in public and private is not
^tricted by the laws of the United States, military forces in aid of
^ther belligerent cannot lawfully be originated or organized within
their jarisdiction; and that while all persons may lawfully, and with-
out restriction, by reason of the aforesaid state of war, manufacture
^i^d 6ell within the United States arms and munitions of war, and
other articles ordinarily known as ^contraband of war,' yet they cannot
^rry such articles upon the high seas for the use or service of either
^lligerent, nor can they transport soldiers and officers of either, or
attempt to break any blockade which may be lawfully established and
Maintained during the war, without incurring the risk of hostile capt-
^t« and the penalties denounced by the law of nations in that behalf.
**And I do hereby give notice that all citizens of the United States,

601

§ 402.] NEUTRALITY. [CHAP. XX

•and others who may claim the protection of this Government, who ms
misconduct themselves in the premises, will do so at their peril, ar
that they can in no wise obtain any protection from the Government
the United States against the consequences of tiieir misconduct"

President Grant's nentrality proclamation, Aag. 22, 1870. For. Bel., 1870.

'* Whereas on the 22d day of August, 1870, my proclamation w
issued, enjoining neutrality in the present war between France aj
the North German Confederation and its allies, and declaring, so C
as then seemed to be necessary, the respective rights and obligati(»
of th6 belligerent parties and of the citizens of the United States; a.:
whereas subsequent information gives reason to apprehend that anxm
cruisers of the belligerents may be tempted to abuse the hospital]
accorded to them in the ports, harbors, roadsteads, and other waters
the United States, by making such waters subservient to the purpos
of war:

<^Now, therefore, I, Ulysses S. Grant, President of the United Stat
of America, do hereby proclaim and declare that any frequenting ai
use of the waters within the territorial jurisdiction of the United Stat
by the armed vessels of either belligerent, whether public ships <
privateers, for the purpose of preparing for hostile operations, or a
.posts of observation upon the ships-of-war or privateers or merchao
T^essels of the other belligerent lying within or being about to enter tin
jurisdiction of the United States, must be regarded as unfriendly and
offensive, and in violation of that neutrality which it is the determina-
tion of this Government to observe; and to the end that the hazard
and inconvenience of such apprehended practices may be avoided, I
further proclaim and declare that, from and after the 12th day of Oeto-
t>er instant, and during the continuance of the present hostilities
between France and the Korth German Confederation and its allies^
no ship-of-war or privateer of either belligerent shall be permitted to
make use of any port, harbor, roadstead, or other waters within the
jurisdiction of the United States as a station or place of resort for any
warlike purpose, or for the purpose of obtaining any facilities of wa^
like equipment; and no ship-of-war or privateer of either beUigeiea^
shall be permitted to sail out of or leave any port, harbor, or road-
stead, or waters subject to the jurisdiction of the United States ftom
which a vessel of the other belligerent (whether the same shall b^ ^
ship-of-war, a privateer, or a merchant ship) shall have ^revioo^
departed, until after the expiration of at least twenty-four hours ft^^
the departure of such last-mentioned vessel beyond the jurisdiction ^^
the United States. If any ship-of-war or privateer of either belliger^^
shall, after the time this notification takes effect, enter any port; ba^'
bor, roadstead, or waters of the United States, such vessel shall b^
required to depart and to put to sea within twenty-four hours after b^
-entrance into such port, harbor, roadstead, or waters, except in case o

608

•CHAP. XXI.] DEGREE OP VIGIL AJNCE TO BE EXERCISED. [§ 402

Btress of weather or of her reqairing provisions or things necessary for
the subsistence of her crew, or for repairs; in either of which cases the
aathorities of the port or of the nearest port (as the case may be) shaU
require her to pat to sea as soon as possible after the expiration of such
period of twenty-fonr honrs, without permitting her to take in sop-
plies beyond what may be necessary for her immediate use; and no
sncli vessel whioh may have been permitted to remain within the
waters of the United States for the parpose of repair shall continue
within such x)ort, harbor, roadstead, or waters for a longer period than
twenty-four hours after her necessary repairs shall have been com-
pleted, unless within ^uch twenty-four hours a vessel, whether ship-of-
war, privateer, or merchant ship of the other belligerent| shall have
<leparted therefrom, in which case the time limited for the departure of
SQCh ship-of-war or privateer shall be extended so far as may be neces-
sary to secure an interval of not less than twenty-four hours between
SQch departure and that of any ship-of-war, privateer, or merchant ship
of the other belligerent which may have previously quit the same port,
harbor, roadstead, or waters. No ship-of-war or privateer of either
belligerent shall be detained in any port, harbor, roadstead, or waters
of the United States more than twenty -four hours, by reason of the
^Qccessive departures from such port, harbor, roadstead, or waters of
more than one vessel of the other belligerent. But if there be several
vessels of each or either of the two belligerents in the same port, har-
bor, roadstead, or waters, the order of their departure therefrom shall
be 80 arranged as to afford the opportunity of leaving alternately to
the vessels of the respective belligerents, and to cause the least deten-
tion consistent with the objects of this proclamation. 'So ship-of-war
or privateer of either belligerent shall be permitted, while in any port,
harbor, roadstead, or waters within the jurisdiction of the United
States, to take in any supplies except provisions and such other things
as may be requisite for the subsistence of her crew, and except so
>Qach coal only as may be sufficient to carry such vessel, if without sail
power, to the nearest European port of her own country; or in case the
vessel is rigged to go under sail, and may also be propelled by steam
power, then with half the quantity of coal which she would be entitled
to receive if dependent upon steam alone; and no coal shall be again
siipplied to any such ship-of-war or privateer in the same or any other
port, harbor, roadstead, or waters of the United States, without special
Permission, until after the expiration of three months from the time
^hen such coal may have been last supplied to her within the waters
of the United States, unless such ship-of-war or privateer shall, since
^^t thus supplied, have entered a European port of the Government
to which she belongs."

President Grant's proclamation of Oct. 8, 1870. For. Rel., 1870.
8. Mis. 162— VOL. Ill 39 609

§ 402.] NEUTRALITY. [CHAP. XXL

^< The undersigned, Secretary of State of the United States of Amer-
ica, has the honor to acknowledge the receipt of the two notes which
Mr. Lopez Eoberts, the envoy extraordinary and minister plenipoten-
tiary of Spain, did him the honor to address to him on the 17th instant
One of these notes incloses copies of a correspondence between the
Spanish consul at New York and the district attorney of the United
States for the southern district of New York, in relation to the steamer
Hornet.

^< In transmitting this correspondence Mr. Lopez Roberts avails himself
of the opportunity to make certain comments ux)on the conduct of some
of the officers of the United States towards that steamer. . If the under-
signed correctly apprehends the purpose of that note of Mr. Lopes
Boberts, its complaints relate to aets said to have been done, or omitted
to be done, at two distinct periods. Those first complained of are
charged as happening about the time when the correspondence took
place between the Spanish consul and the district attorney. The re-
maining charges relate to matters that took place prior to that corre-
spondence, and which have no connection with it. With regard to the
first complaint, it would appear, from the correspondence transmitted
by Mr. Lopez Eoberts, that the Spanish consul at New York, on the 8th
instant, informed the district attorney for the southern district of New
York that, in compliance with a supx)Osed intimation or suggestion from
the Secretary of State, he called his attention to the steamer Hornet,
that that steamer had been formerly employed in illegal expeditions
against Cuba ; that she had been libeled for this at Wilmington ; that
on the 7th day of June last, bonds were given for her discharge, and
she was released ] that she was then brought to the port of New York;
that the Spanish consul again made complaint against her, and she was
again seized and libeled on the 6th day of October last ; that, applica-
tion being made for her release, a hearing was had before the court, in
which the Spanish consul took part ; that, as the result of that judicial
hearing, she was again released ; that the consul, at the date of his
letter, had information, on which he relied with perfect confidence, that
the steamer was being fitted out in the port of New York for the pur.
pose of proceeding to sea, and there taking on board military expedi-
tions from Nassau and Key West, and conducting them to the coast of
Cuba ; that he thought his note to a local prosecuting officer as < suffi-
cient to call for the exercise of the ample preventive power of this
Government against the departure ; ' and that he left in the hands of
that officer the responsibility of permitting the vessel to proceed.

" The district attorney appears to have replied to this note, on the
same day, that there was no proof or evidence in it which would author-
ize him to seize the Hornet, or to take any steps beyond those which he
had already taken ; that he had caused a rigid scrutiny to be exercised
in order to prevent the Hornet from taking on board anything indicat
ing hostile intentions j that he had been advised that it was the purpose

610

CHAP. XXI.] DEGREE OF VIGILANCE TO BE EXERCISED. [§ 402

of that vessel to clear for Nassau ; that ho could not act legally ou mere
BTirmise; but that, if proper evidence were furnished, he would take
any stops necessary to prevent violations of the laws of the United
States.

Hi is further charged in Mr. Lopes Boberts' note that the steamer
Hornet on the same day put to sea, without such steps ^having been
taken to prevent her departure as should have been dictated by the cir-
cnmstances and criminal antecedents of the aforesaid vessel.'

^^The undersigned has the honor, in reply to this portion of the first
note of Mr. Lopez Boberts, to say that it appears from this correspond-
ence that the Hornet, having been seized on the complaint of the Span-
ish consul only two months before the date of the correspondence, and
a hearing in which the Spanish consul took part having resulted in the
discharge of the vessel, no subsequent proof, or anything in the nature
of legal evidence other than a repetition of that which had already been
passed upon by the court, and been decided to be InsufGLcient for the
detention of the vessel, had been furnished by the consul, or by any
other Spanish official ; that, nevertheless, the district attorney offered
to again take steps to detain the Hornet, if proof were ftimished which
vonld warrant him in so doing, which proof was not furnished.

''The undersigned takes the liberty to call the attention of Mr. Lopez
Boberts to the fact that a district attorney of the United States is an
officer whose duties are regulated by law, and who, in the absence of
executive warrant, has no right to detain the vessels of American citi-
zens without legal process, founded not upon surmises, or upon the an-
tecedent character of a vessel, or upon the belief or conviction of a con-
6qI, but upon proof submitted according to the forms required by law.
Although it appears to the nndersigned that in this case the district
attorney complied with his duty, and would not have been justified in
^ling steps for the seizure of the Hornet in December, on the unsup-
ported representations of the consul, after the failure of that officer to
^ish the requisite proof to authorize her continued detention, yet, as
Ur. Lopez Boberts seems to think that thei'e may have been a derelic-
tion of duty, the nndersigned will transmit to the head of the Depart-
ment of Justice, to whom the district attorney for the southern district
of Kew York is subordinate, a copy of Mr. Lopez Boberts' complaint,
^d of the correspondence inclosed in his note.

'*The undersigned, in taking leave of this branch of the subject, in-
yites the attention of Mr. Lopez Boberts to the inaccuracy of the Span-
^ consul at Kew York, when he states that ^ the Secretary of State of
^0 United States has informed his excellency the minister of Spain that
^ complaints or information in respect to violations of the neutrality
laws of this Government, to the prejudiceof the lawful authority of Spain,
filallbe presented to you (the district attorney), as the prosecuting offi-
cer of the Dnited States.' It is undoubtedly true that the undersigned
did reqnest Mr. Lopez Boberts, for convenience in the judicial proc^e^^L-

611

§ 402.] NEUTRALITY. [CHAP. 3

ings which might be began, as well as to secare promptness of actioi
the courts when necessary, to say to the consuls of Spain that t
would be authorized to lay before the prosecuting officers of the Uni
States, without previous transmission to the undersigned through
Spanish legation at Washington, any legal proof of a violation of
laws that might be in their possession. The undersigned was thus t
to show to the Government of Spain that the United States would o
nothing that could be reasonably deemed essential to the performa
of their duties toward Spain. But it was not the purpose of the un<
signed to surrender to these subordinates the respective right and d
of making and receiving all complaints in respect to any alleged vi
tion of the neutrality laws of this country, to the prejudice of the la^
authority of Spain. Such a proceeding would not have accorded ^
the dignity of this Government, or with the respect which it enterts
for its ancient ally and friend. It it also reasonable to conclude fi
the transmission of this note to the undersigned, that Mr. Lopez I
«rts regards the subject in the same light, and that when he inclose
his note a copy of the consul's letter, he failed to consider with his uf
care the latitude of its signification.

*' The remainder of the note, to which the undersigned is now re]
ing, is devoted to a criticism upon the conduct of the Government of
United States with reference to the previous career of the Hornet. '
second note of Mr. Lopez Eoberts, of the same date, is devoted to
examination of the conduct of this Government toward certain ot
vessels and persons charged with past violations of the neutrality h
of the United States connected with previous alleged expeditions agai
the Island of Cuba. The undersigned proposes to treat these sabj<
together.

^^ Mr. Lopez Boberts claims that he has shown by 6atis£a.ctory pi
that the vessels known as the Perit, the Catherine Whiting, the H.
Cool, the Jonathan Ohase, the George B. Upton, and the Hornet, h
been engaged in aiding the insurrection in Cuba, in such a way ai
violate the laws of the United States known as the ' neutrality la
He also says that in his judgment the owners of all vessels who, ^kn
ing the purpose for which their property is destined, load them in oi
to break the laws established for the maintenance of the duties of in
national neutrality, should be made to feel the legal consequence
their conduct in the improper employment of their property.' He :
ther gives the names of sundry persons who, in the city of New T
and elsewhere in the territory of the United States, are said to h
aided and abetted in alleged violations of the laws of the United Sti
in one or more of these expeditions. With regard to most of these ]
sons, he sets forth with some detail a variety of acts which were 8ai<
have been committed prior to the 12th day of October last.

<' It would also appear, from the statement of Mr. Lopez Boberts, t
some efforts have been made by Spanish officials to ind uce the dist

612

CHAP. XXI.] DEGREE OF VIGILANCE TO BE EXERCISED. [§ 402.

attorney for the soathern district of New York to proceed against some
of these vessels or persons, and that he has decided that, in some of the
eases, no proceedings can be had, for technical reasons that are stated
in Mr. Lopez Eoberts' note, and that, as to the individuals named, no
proceedings can be maintained, because it is supposed by him th^t under
the operation of the proclamation of the President of the United States,
darted October 12, 1870, all offenses against international or municipal
la\¥ referred to in the proclamation were pardoned or condoned.

^'He also complains, in the case of the Hornet, that the proceedings
wbich were begun against that vessel at Wilmington were not prose-
exited to final judgment and execution ; and he adds that, ^ if the Fed-
eral Government liad given the necessary orders for it to be continued
in the courts of justice, it is not to be doubted that, at the present mo-
ment, the steamer Hornet would not be about to commence new and
criminal adventures.'

^^He complains of the restitution of the Hornet as * an incomprehensi-
ble act of neglect.' He says that while he ^ is far from wishing to make
anjsQggestion which could be interpreted as an interference in the ad-
ministration of the laws of this country in that which relates to past
offenses against neutrality, yet he cannot avoid the conviction that the
Secretary of State will agree that such an indulgence • • • tends
to preserve and encourage the state of things in New York relative to
expeditions against Cuba.'

** It would be a sufiScient answer for the undersigned, in reply to these
portions of Mr. Lopez Soberts' -notes, to say that his very proper dis-
claimer of a purpose to interfere in the administration of the laws of
ttus country in that which relates to past offenses against neutrality,
Anders all these statements irrelevant. So long as the rights in the
domestic tribunals of the United States which are secured to the sub-
j^ts of Spain by treaty are not invaded, and so long as the officials of
the United States manifest the readiness which they have ever shown
to prevent attempted violations of the laws enacted to enforce their
btemational obligations, a criticism upon the conduct of the courts of
the United States in the treatment of persons charged with past offenses
<^uld not but be regarded as a step beyond the recognized bounds of
diplomatic correspondence. It may not, however, be improper, while
accepting the disclaimer of Mr. Lopez Eoberts, to indicate to him the
leading motives which prompted the benevolent act of the President and
the merciful policy of this Government.

^'A fierce and sanguinary conflict had been raging for two years in the
Island of Cuba when the President's proclamation of October 13 was
issaed. That this conflict originated in a sense of wrongs sustained
through a long series of years of misgovernment prior to the outbreak
of the late revolution on the peninsula, would probably not be denied
l>y the eminent men who were at the head of that revolution. On the
contrary, it is understood that they have been free in the expression of

§ 402.] NEUTRALITY. [CHAP. X5

their regret tbat the Cubans would not trust the remedy of their u
doubted grievances to the hands of the liberals of Spain.

" In the prosecution of this contest several decrees were made by tl
Spanish authorities which interfered with, or threatened to interfe
with, the rights of citizens of the Unijed States. The United Stat
took occa^iion in advance to express their dissatisfaction with sa(
decrees, and to point out how they migbt conflict with the rights
their citizens.

" In the progress of events the sympathies of large portions of tl
people of the United States naturally became interested in the strngg
to throw off a political connection which had entailed upon Ga)
an onerous system of taxation, and which had deprived it of its auto
omy. This natural feeling was increased and vivified when it becan
known that the insurgents were further contending for a cause for whu
the American people had themselves suffered so much —the abolition
African slavery.

" The Government of the United States felt constrained by its intern
tional duties not to permit itself to be controlled by this popular sys
pathy. The authorities of Spain denied that the insurrection possess*
that civil and political organization, and that probablity of succee
which would require the other national powers to accord to it the ri^
to carry on a recognized war, and this Government admitted that stL*
was the case, and has continued so to regard it up to the present tiit:

^^ In the course of the struggle, as had been foreseen, the rights
citizens of the United States were affected by the steps taken by t
Spanish authorities to crush the insurrection. It being found incouvc
ient to refer all such cases to Madrid, Mr. Lopez Eoberts was, up*
the request of this Government, authorized to settle by agreement wx
the captain-general of Cuba, without consulting the Spanish Gove^
ment, questions arising with this Government or its citizens, from t.
circumstances through which the Island of Ouba was passing, excepts
cases of disagreement with the superior authority, or in a case of siX'
gravity that, in the judgment of Mr. Lopez Roberts, it might reqai
previous consultation with the Government.

^^ Under the operation of this regulation, various representations we
from time to time made to Mr. Lopez Roberts by the undersigned, ai
questions were thus amicably adjusted, until the power was withdraw
by the Government at Madrid, ' in rtetr,* as the undersigned was aft-^
ward officially informed, ^of the favorable situation in which thelsloi^
Cuba then wasJ

" It was understood here, both from representations made to t^
American minister at Madrid, and from the views repeatedly express
by the Spanish minister at Washington, that the * favorable situati^
referred to was the supposed extinction of ar organized armed re&i
ance to Spanish authority in Ouba.

614

<:HAP. XXI.] DEGREE OF VIGILANCE TO BE EXERCISED. [§ 402.

"The President did not and would not suppose that the Government
of Spain would lessen the means of protection to the persons and proper-
ties of citizens of the United States in Cuba, which it had extended dur-
ing the insurrection at the request of this Government, unless it was con-
nnced that the insurrection, which made it necessary, had virtually
iiea^sed. He could not and would not assume that a Government which
iacl maintained such friendly relations with this Government would vol-
aafcarily do so unfiriendly an act as to withdraw, without notice, the pow-
ers conferred upon Mr. Lopez Boberts at his request, unless it was con-
yix2<3ed that the necessity for them had ceased inconsequence of the
6af>3)re8sion of the insurrection. He was pleased to believe that, in the
opinion of the Spanish Government, the danger from the insurrection
wa,^ over } that the time for milder measures had come, and that the
blessings of peace were to follow. It did not apx>ear to him that the re-
^tr-s^ints upon the commerce of the United States and upon the free
mo^vements of their citizens— measures which had been taken because
tho maintenance of the obligations of the United States as one of the
faixiily of nations appeared to require them — should be longer imposed.
It did not seem to this Government that good could come from contin-
uing preventive, much less punitive, proceedings against individuals or
vessels, when the cause which prompted the alleged illegal acts was sup-
posed to have disappeared. It was believed to be in harmony with the
liamane policy which has characterized this Government, that a suspen-
sion of the rigid prosecution of offenses (partaking of a political char-
acter) growing out of a sympathy with a political struggle in a neigh-
boring island, might well take place. It was hoped that the benevolent
example of the United States in this respect might, perhaps, be reflected
in the policy of Spain toward Guba. It was believed that the reforms
^hich had been so often promised to the representatiye of the United
States at Madrid were about to be granted ; that the blot of slavery
voald disappear ; that the right of colonial self-government would be
|[iveii to the island ; that the burdensome system of taxation would be
Abolished, and that, peace being restored, all the desired reforms being
Ki^nted, and amnesty and pardon being given, the Government of the
Ignited States would be relieved from the disagreeable duties which it
^Ad performed for about two years.

^^ Mr. Lopez Boberts will And in these considerations an evidence of the
Onerous purposes and desires of the Government of the United States
^ward his Government and toward the Island of Cuba, and its logical
^tion in reliance upon the promises and the representations of the Span-
ish Government, and of its esteemed representative to this Government.
He will permit the undersigned also to say (in reply to his suggestion
that these persons have been stimulated and encouraged by the indulg-
^^ce hitherto shown them by a benevolent Government) that it seems to
the undersigned that they have found their encouragement and their
stimulus, not in the humane course of this Government, but in that

615

^ 402.] NEUTRALITY. [CHAP. XXI. —

love of liberty and in thatsympathy ^ithcommaoities straggling against
oppression, and for freedom, which is the portion of all generous nat-
ures; and that such stimulus and encouragement will fail them when
Spain shall imitate the benign policy of the United States.

<* Mr. Lopez Eoberts also does the undersigned the honor to quote, .^ 4,
with approval, from a dispatch from the undersigned to Mr. Motley, the -^^e
following passages :

<< < We hold that the international duty of the Queen's Oovemment ^i^ jt
in this respect was above and independent of the municipal law of Eng- — -^^
land. It was a sovereign duty, attaching to Great Britain as a sover- — -7.
eign power. The municipal law was but a means of repressing or pun- — m^-
ishing individual wrong-doers ; the law of nations was the true and
proper rule of duty for the Government.

<^ ^ But the Government of the United States has never been able to
see the force of this alleged difficulty. The common law of England is^s^g
the common law of the United States. In both countries, and cer^
tainly in England, revenue seizures are made daily, and shfps are pre-
vented from going to sea on much less cause of suspicion than attach
to the suspected ships of the Oonfederates.'

<' The undersigned receives with great satisfaction this official adhesions n
of Spain to the doctrine that in time of war it is as well the right as th^^^ e
duty of the non-combatant powers to maintain a neutral position—^ -a
doctrine of which the United States were the earliest and have remain
the most consistent advocates. In the first stage of their national hi
tory, they suffered from the unlawful attempts of other belligerent po
ers to force them from the neutral attitude which they had the right
n^aintain. In a later and more trying period, they were injured by tii
neglect of other powers to preserve their neutrality when they the
selves were in a state of war. It is a satisfaction to feel that the pes
tion which they have maintained when they were at peace, and claim
when they were at war, is gaining ground on the continent of Enrope^^*

*^ The intelligence and acumen of Mr. Lopez Boberts cannot hav— "^
failed to notice that these doctrines were applied to a condition when ^ ^
state of war was recognized by the neutral ; that the whole of the co
text of the argument from which Mr. Lopez Boberts has done the n
dersigned the honor to excerpt the passages which are quoted above,
late to a recognized condition of war, and that the grievances complained
of by the United States in the dispatch from which the quotations a
made were the acts of a GK)vemment which had formally recognized
state of war between the United States and their armed opponents.

'' To make the doctrine of the passages which have been quoted a
plicable to the relations of Spain and Cuba, the former must acknowlT ^' j
' edge a state of war between herself and the inhabitants of Cuba whic=^**
other nations may recognize.

** The undersigned has not heretofore understood that the Gover :^*
ment of Spain had yet recognized, or was yet willing that the oth^''

G16

CMA?. XXI.] DEGREE OF VIGILANCE TO BE EXERCISED. [§ 402.

powers shonld recognize, a state of war as existing in the Island of Cuba,
bat the application which his excellency the minister of Spain endeavors
to make of the position in which the United States acknowledged to
have found themselves after that several powers, including Spain, had
accorded the rights of belligerents to their revolted citizens, induces the
undersigned to inquire whether Spain now regards her position toward
the insurgents of Guba the same as that which the United States occu-
pied toward their insurgent citizens at the time of the occurrence of the
acts complained of in the dispatch from which Mr. Lopez Roberts has
quoted"

Mr. Fishy Sec. of State, to Mr. Lopez Roberts, Dec. 28, 1870. MSS. Notes, Spain ;
For. Eel., 1871.

*^ Your dispatch No. 64, of the 25th ultimo, has been received. The
Assurances offered to you by the Haytian Government as to its disposi-
tion to keep wholly neutral in the contest between the Dominican par-
ses, severally headed by Baez and Oabral, did not seem to be expressed
^ a way to inspire perfect confidence in their sincerity. If it be borne
^ mind that, for a considerable period, both the Spanish and French
parts of the island of San Domingo were under the sole dominion of
Baytiy that it has been the policy of that Government not only to op-
Pose the independence of the Spanish part of the island, but to prevent
its occupation by a foreign power, the difficulty of lending entire cre-
^^Qce to any assurances which that Government may give as to its in-
disposition to interfere in Dominican affairs will be apparent. The pro-
tost of the Haytians against the recent attempt of Spain to regain her
ft>ot-hold in that island is fresh in the recollection of the public. • • •

^ It may easily be understood that the Haytians, being mostly de-
scended from those of African extraction, who, once held in slavery, won
their f^edom and independence by expelling their former masters,
^onld be reluctant to allow any nation tolerating slavery to acquire
dominion in San Domingo. This feeling should not now, however, in-
^^de the United States, especially in view of the fact that the equality
traces here before the law is signally exemplified in the person of our
diplomatic representative accredited to them.''

Mr. Fish, Sec. of State, to Mr. Bassett, Feb. 9, 1871. MSS. Inst. Hayti : For*
Bel., 1871.

*' Since the last instruction to you upon the subject, reiterated repre-

f^Jitations have been received here from the Government of the Domin-

^^^^ Bepublic to the effect that, despite its professions of neutrality,

the Haytian Government has taken part with Gabral and Luperon, the

j ^^ed enemies of that Bepublic on the frontier, and has furnished them

I '^th men, munitions, and arms in furtherance of their designs. The

I ^^8 stated, or some of them, are of a character which may not be de-

m lii^ by the Government of Hayti. If their accuracy should be acknowl-

% ^ged, that Government might be said to have acted with a want of

§ 402.] NEUTRALITY. [CHAP. XXL

good faitli towards the Government of the United States, against which
yoa will again remonstrate pointedly bat dispassionately."

Mr. Fish, Sec. of State, to Mr. Bassett, June 24, 1871. M6S. Inst., Hayti; For.
Rel., 1871.

^< The position which the United States assumed, and has maintained,
• • • has been that when reasonaJt)le grounds were presented to a
Oovernment, by a friendly power, for suspicion that its peace is threat-
ened by parties within the jurisdiction of that Government, it is the
duty of the latter to become the active prosecutor of those threatening
the peace of the former."

Mr. Fish, Sec. of State, to Mr. Akerman, Nov. 20, 1671. MSS. Dom. Let.

{This supposes that the Government in which such disturbing action
:es place has the legal and constitutional power to suppress it
Whether, supposing it has such power, it is internationally liable for
failure to prosecute, depends upon the amount of proof accessible to it,
and the nature of the alleged breaches of neutrality. But want of con-
stitutional power to prosecute is not in itself a bar to a claim for afafl*
ure to enforce neutrality. See supruy § 9 ; and further rulings in this
and the following section.]

The President, tinder the eighth section of the act of April 20, 1818, is
not required to arrest in a United States port an unarmed vessel on-
less it be shown that a military enterprise is begun or set on foot throogh
her contrary to the provisions of the statute.

Mr. Fish, Sec. of State, to Mr. Beroab^, Mar. 23, 1874. MSS. Notes, Sptifl.

" The United States do not employ any police force. ConseqnenlIy>
it is usually advisable for the agents of a foreign state which may sop-
pose that illegal enterprises against it are about to be set on foot in this
country to employ detectives of their own to watch suspected parties*
If a discovery should thereby be made of an offense against the 1^^
the testimony of the detective would be available for the prosecation
of the offenders. Under the law of this country and of England, tf
contradistinguished, I believe, from that of the continent of Eoiopo
and elsewhere, no person can be arrested or prosecuted for a Grime or
misdemeanor except upon the affidavit of a credible witness."

Mr. Fish, Sec. of State, to Mr. Garcia, Nov. 17, 1874. M8S. Notes, Azg. Bep.

<< This Government has hitherto expected and will continue to exp^
that other Governments will fulfill their duties as neuiraU towards ^^
United States. It has been its endeavor and always will be its poipo^
to fulfill the same duties towards other nations, and in like manner
towards Spain. It is not conscious of any dereliction in this resp^^
and it believes that its power is ample for the purpose. Any Govern-
ment which requires the exercise of that power must, however, proceed
in the only way by which that authority can be available.''

Mr. Fish, Sec. of State, to Mr. MantUla, Sept. 27, 1875. MSS. Notes, Sv^
For a discussion of the Alabama case, see Mr. Fish, Sec. of State, to S^ ^
Thorntou, Sept. 18, 1876. MSS. Notes, Gr. Brit. ; and see iVra, (4^^

618

lAP. XXI.] DEGREE OF VIGILANCE TO BE EXERCISED. [§ 402.

The allowing a vessel bearing the flag of the United States to take
irt in warlike operations against a Government with which the United
tates is at peace is a violation of the spirit of onr neutrality statute.

Mr. Fish, Seo. of State, to Mr. Marsh, Jan. 29, 1877. MSS. Instr., Italy.

" I have the honor to acknowledge the receipt of your note of the 30th
' April, in which you communicate to me ofiScially the information
lat ^ Russia has declared war against the Ottoman Empire, and com-
enced hostilities in Europe and Asia.' You state also that, in view of
lese events, the Sublime Porte is convinced that the Government of
le United States will, as a neutral state, be pleased to guarantee the
une treatment that it granted to the belligerents in the last great
luropean war of 1870-'71.

" I am directed by the President to say in reply that the expectation
f the Sublime Porte that a just and impartial neutrality will be ob-
Brved by the United States is well founded. The Government of the
Inited States will now, as heretofore, be found earnest, not only in
laintaining an attitude of neutrality in European contests, but in faith-
ally observing all treaty obligations with either of the belligerent pow-
rs, and also in preventing the infraction, by any persons in this country,
f the laws of the United States or the laws of nations.
^^ While thus adhering with fidelity to a line of action which is in
ccord both with legal obligations and with the public sentiment of the
American people, the Government of the United States anticipates with
onfidence that the Sublime Porte will, on its part, take due care that
lie rights of the United States as a neutral power shall be fully and
crnpalously respected, and that citizens of the United States, wherever
Qisoing their peaceable and lawful avocations, shall in no wise be un-
i8tly interfered with or molested."

Mr. Evarts, Sec. of State, to Aristarchi Bey, IMay 3, 1877. MSS. Notes, Turkey;
For. Eel., 1877.

^^Tour dispatch, No. 7, of the 29th of April last has been received,
t relates to neutral rights and the rights of peaceable and unarmed
itizens in bombarded towns. The general views upon these subjects
^hich you express are approved, and you were judiciously cautious
«fore you joined your diplomatic colleagues in signing the protest
'bich was addressed to the commander of the Chilian fleet, to require
hat paper to be so changed as to make the protest dependent upon the
rath of the facts which originally was assumed. The prudence of this
tep is understood to have since been illustrated by the disclosure that
he bombard^iont of at least one of the points named was by no means
inprovoked, but was in retaliation for the firing upon boats of the Ghil-
aa squadron, which approached the port under a flag of truce for the
^arpose of announcing the blockade. The firing upon a flag of truce *
* notoriously one of the gravest breaches of the laws of war which a

619

§ 402.] NEUTRALITY. [CHJ

bclligereot can commit, and is held to justify severe measures <
iation, sach as were adopted in the instance adverted to.

"Although the policy of this Government has heretofore i
leaning towards neutral rights, this has never been or intendc
such as to extinguish the just rights of belligerents, especially
paratively weak powers. It is apprehended that the capitalists
European states, who have heavy investments in the funds an<
trade of the South American countries, are so alarmed about the
ests that they may not be indisposed to deny any belligerent ri
those countries in the war now unhappily on foot. Undonbtec
endeavor to impress their views and their anxieties upon their <
ments at home. This Department is not aware how these m;
been received. It is hoped, however, that in deciding upon the
that no neutral will omit to bear in mind that an acknowledg
the independence of the belligerents implies a concession to the
the rights in that character which they may claim under the put
however the exercise of those rights may infringe upon the inte
neutrals.

<< The war adverted to is much to be deplored, and, for the i
humanity at least, it is hoped that it may soon be brought to an
able close. Although our own citizens have a much smaller int
this than those of European countries, complaints upon the c
especially firom owners of vessels in the carrying trade, have i
this Department. Hostilities in this case, however, are not like)
soonest ended, or peace to be permanent, if neutrals show sucb
tience as they would not be likely to acquiesce in if the situatic
to be reversed.

<< In regard to the law applicable to the bombardment of unf
places permit me to refer you to the opinion of Attorney-General
Stanbery, of the 31st of August, 1866, relative to the bombardi
Valparaiso by the Spaniards. A manuscript copy of the paper i
with transmitted to provide for the contingency of your not ha
printed one."

Mr. Eyarts, Seo. of State, to Mr. ChristLancy, June 18, ISTD. MSS. Ins
For. Rel., 1879.

In Mr. Evarts' instruction is inclosed the following :

^<It appea^ from your letter of the 27th instant that the An
commercial houses of Wheelwright & Co. and Loring & Co., doi
for commercial purposes at Valparaiso, sustained losses of the!
chandise in the conflagration caused by the bombardment of tb
by the Spanish fleet on the 31st of March last.

^' The question presented for my opinion is, whether a case is m^
the intervention of the United States on behalf of these citiz<
indemnity against Spain or Chili Y

*^I do not see any ground upon which such intervention is allowi
respect to either of those Governments.

620

<;IIAP. XXI.] DEGREE OF VIGILANCE TO BE EXERCISED. [§ 402,

<«Tlie bombardment was in the prosecntion of an existing war between
Spain and Chili. Although, nnder the circamstances, it was a measure
^f extreme severity, yet it cannot be said to have been contrary to the
laws of war, nor was it unattended with the preliminary warning to
non-combatants usnal in such cases.

^^ It does not appear that in carrying on the bombardment any dis-
crimination was made againnt resident foreigners or their property. On
the contrary, there was at least an attempt to confine the damage to
public property.

^^Then, as to the Chilian authorities, it docs not appear that they did
or omitted any act for which our citizens there domiciled have a right
to complain, or that the measure of protection they were bound by
public law to extend to those citizens and their property was withheld.
*'No defense was made against the bombardment, for that would have
been fruitless and wonld have aggravated the damage, as Valparaiso
was not then fortified, and no discrimination was made by those author-
ities between their own citizens and foreigners there domiciled. All
shared alike in the common disaster.

^*The rule of international law is well established that a foreigner who
resides in the country of a belligerent can claim no indemnity for losses
of property occasioned by acts of war lik« the one in question.

^' The bombardment of Copenhagen by the British in 1807 is a notable
illustration of this rule. Immense losses were sustained by foreigners
domiciled in that city. There was no previous declaration of war against
Denmark, and no reasonable ground upon which the bombardment could
be justified, and yet no reclamation upon the footing of these losses was
ever admitted by Great Britain. The bombardment of Greytown, in
May, 1854, by the United States sloop-of-war Cyane, is another instance
^f this rule. Losses were sustained by French citizens there domiciled,
from the fire of the Cyane. A petition to the United States from those
parties for indemnity was presented through the French minister, then
i^eeident at Washington, but without the express sanction of his Gov-
^niment. Upon full consideration, this petition was refused. Mr.
Marcy, then Secretary of State, in answer to the claim, holds the follow-
ing language: < The undersigned is not aware that the principle that
foreigners domiciled in a belligerent country must share with the citi-
^^ns of that country in the fortunes of war has ever been seriously con-
trovert^ or departed from in practice.'

*^1 have therefore to repeat that I am of opinion no ground is laid for
th« intervention of the United States in favor of these parties.''

12 Op., 21, Stanbery, Aug. 31, 1866.

Ab to exertioiiBof the Government to prevent filibastering expedition from Key

West to Gnba in 1884, see Mr. Frelinghnysen, Sec. of State, to Mr. Eeed,

Apr. 30, 1884. MSS. Inst., Spain.

^^Iiecommend that the scope of the neutrality laws of the United
^tates be so enlarged as to cover all patent acts of hostility committed
^^ our territory and aimed against the peace of a friendly nation. Ex-
iting statutes prohibit the fitting out of armed expeditions and restrict
^^6 shipment of explosives, though the enactments in the latter respect
^ere not framed with regard to international obligations, but simply
^or the protection of passenger travel. All the statutes were intended
^0 meet special emergencies that had already arisen. Other emergen-
^^ have arisen since, and modem ingenuity supplies means for the

§ 402.] NEUTRALITY. [CHAP. XXL

organization of hostilities withont open resort to armed vessels or to
filibosteriup^ parties.

** I see no reason why overt preparations in this country for the com-
mission of criminal acts, sach as are here under consideration, should
not be alike punishable, whether such acts are intended to be com--
mitted in our own country or in a forei^ country with which we are afe:
peace.

^^The prompt and thorough treatment of this question is one whiclv
intimately concerns the national honor."

President Arthar, Fourth Annnal Message, 1381.

" I have the honor to acknowledge the receipt to-day of your note
the 26th instant, in which you inform me that the'Spanish consul at iNe^
Orleans has intelligence of certain deposits of arms and munitions i
the city of New Orleans, and on board of a vessel in the waters of th
port, which are said to be intended for the equipment of a fllibusteric^ <
expedition against Cuba. In view of this you ask that the United Statog
marshal at New Orleans be instructed, as on previous occasions, by tlie
Attorney-General, to take action in the case, seconding the action of the
collector of the port, who, as you say, is prepared to act under his stanJ-
ing orders. '

^' I have hastened to transmit your note to the Attorney-General, with
the request that the agents of his Department at New Orleans be in-
structed by telegraph that, so soon as the judicial mechanism necessary
for the enforcement of the laws applicable to the case shall have been
set in motion by due information made under oath by some person oog*
nizant of the facts alleged, or possessing belief sufficient to that end,
those officer^ shall lend all due aid to further the ends of justice.

<' I have also transmitted a translation of your note to the Secretary
of the Treasury, to the end that the co-operation of the revenue officers
in the enforcement of the law may be assured."

Mr. Bayard, Seo. of State, to Mr. Valera, May 28, 1885. MSS. Notes, Spftifl?
For. Rel., 1885.

'^ I take this occasion to communicate, in connection with the note
addressed to you on the 28th ultimo, the following terms of a telegram
from the Treasury Department on the 29th ultimo, to the collector of
customs, New Orleans, viz :

" * You will give United States attorney and officers acting under to
direction aU aid that may be legally given to prevent the shipmeDtof
arms by bark Adeliua or other vessel in expedition against Cuba in vio-
lation of neutrality laws.'"

» Same to same, Jane 13, 1885 ; ibid.

" At the earliest moment compatible with a due consideration of th«
subject presented, I take pleasure in replying to the note of the Slst
instant which you did me the houor to address to me concerning the

C22

LP. XXI. j DEGREE OF VIGILAKCE TO BE EXERCISED. [§ 402.

lifestations of disaffected Oabans and their sympathizers in the
ted States, and the powers and dnty of this Government, under ex-
ig law, in respect of sach manifestations.

The frankness and energy with which you present, at the instance of
chief magistrate of the Island of Cuba and on behalf of your Gov-
Dent, the considerations whicL you deem pertinent to the matter
Id cause a mere summary of your argument to suffer by comparison,
does it appear necessary to the purposes of this reply that I should
be your premises seriatim. It will be sufficient to regard the object
appear to have in view, which I take to be to cast upon the Gov-
nent of the United States implied responsibility for * permitting ^
tolerating' expressions of sympathy in the United States on the
) of those misguided persons who seek to disturb the peace of Spain,
to urge the obligations of this Goveri^nent to prevent such expres-
18 from being made. Incidentally you appear to impugn the suffi-
icy of the existing modes of procedure in the United States with
irence to infractions of law, as, for instance, when you advert to the
»rehended results of trial by a jury of the vicinage wh^re the offense
y have been committed, and assume that the prevalence of popu-
sympathy with the accused would * almost certainly' result in ac-
ttal.

'While the tenor of your note leads me to believe that you hold it the
ty of a Government to repress outward manifestations of opinions
ich may result in overt violations of law, I would perhaps do you in-
ticeif I thought you held it likewise an obligation on the part of the
ecutive to repress public sympathy with the actors in the case.
*The sympathies of masses of men may be mistakenly bestowed upon
worthy objects, but error of this character is not in itself a crime
lenable to the punitive arm of justice.

'Ab you are aware, the Executive of the United States has no author-
to take cognizance of individual opinions and the manifestation
ireof, even when taking the shape of revolutionary or seditious ex-
^ODS directed against our own Government; and it is no less in.
Bipetent to pass upon the subversive character of utterances alleged
contravene the laws of another land. In the early life of this Gov-
^ent an attempt was made by the ^ alien and sedition ' acts, passed
1798, to invest the Executive with authority over those persons,
"angers or natives, who might by conduct short of overt crime imperil
s stability of the infant state, but those acts were exceedingly ob-
^ou8 to the majority of the American people, and by their own terms
-re of very limited duration, and since their expiration public opinion
>ttlcl never have justified their re-enactment. The people of the
^ted States became early convinced of the uselessness and unwisdom
such statutes. Error being in such cases its own corrective, a safe-
^rd is found in the fact that the open proclamation of nefarious intent
^im it harmless. (See supra, § 389.)

t2&

§ 402.] NEUTBALixr. [chap.

<^ In passing from the mere annonncement of the purpose to doanla^n
ful acts to the overt commission thereof, the domain of statute law j
entered. Our laws define and punish acts against the peace and saf^-t:
of our own country and of friendly states. The neutrality act prescril>c
the duty of this Government in respect of acts harmful to its neighboxra
And here let me notice the impression which seems to mark a part c
your note, that the statute implies a de facto neutrality toward bo^^
the foreign state and those whose acts within our jurisdiction may di«
turb its x>eace.

<^ You say that you deplore 'as almost incomprehensible this laxity
in defending a friendly nation from the attacks of any conspirators, and
this singular idea of calling '< neutrality'' thi^ lack of discrimination be-
tween a legitimate and civilized Government, which is regarded as
friendly, and an outlaw who seeks to make war upon that Oovern-
ment by means of robbery, plunder, and incendiarism. One would
think that there was no room for neutrality in such a case, and that none
was possible between two parties whose characters are so entirely dis-
tinct.'

<' I need scarcely remind you that the phrase ' neutrality act' is a
distinctive name, applied for convenience sake merely, as is the term
'foreign enlistment act' to the analogous British statute. The scope
and purpose of the act are not thereby declared or restricted. The aet
itself is so comprehensive that the same provisions which prevent oar
soil from being made a bane of operations by one foreign belligerent
against another likewise prevent the perpetration within our territory
of hostile acts against a friendly people by those who may not be legiti-
mate belligerents, but outlaws in the light of the jurisprudence of na-
tions. There is and can be no ^neutrality' in the latter case. If the
hostile party carries his hostility beyond the pale of law, he commits a
crime against the CTnited States and is amenable to the prescribed pro-
cess and punishment.

^^ This Government administers its own law in the case ; it does not
assume to visit with penalty conduct which, if committed within afo^
eign jurisdiction, might be punishable therein. To do otherwise would
be, in effect, to attempt to recognize and administer within the 80ve^
eignty of the United States a domestic law of another sovereign. Ab
I intimated in my note to you of May 28 last, proceedings under the
< neutrality laws' of the United States are < set in motion by due inft^
mation made under oath by some person cognizant of the facts alleges!
or possessing belief sufficient to that end,' but they are so set in motion
in the name, and by the power, and through the officers, of theOoTern-
ment of the United States. Prosecutions against any who are alleged
to have contravened those laws are not by suit inter partes^ but in the
name and behalf of the Government of the United States against the
accused. The foreign Government against whose peace the alleged

624

tkV. XXI.] DEGREE OF VIGILANCE TO BE EXERCISED. [§ 402.

stito act may be directed is not a plaintiff in the action, as you seem
suggest. The Government of the United States is the plaintiff.
••'The injury complained of is not to the foreign Government, but to
e peace and good order and laws of the Government of the United
»tes. And the Executive can no more ijunish.or repress offenses of
lis nature without the judicial ascertainment of the fact that an unlaw.
lI act has been committed than it could by administrative mandate
^ard death on a charge of murder. Keither in the one case nor in
le other could the representations of parties claiming to be aggrieved
verride the indispensable requisite of a judicial proceeding. The fact
hat the imputed act of wrong doing may, in its result, affect the peace
»f another state, does not supersede the law applicable to the case, and
"ecourse to that law cannot 'imply the uselessness of a diplomatic repre-
ientative.^

^^This Government does not and cannot undertake, as I have shown^
:o control the workings of opinions, sympathy, and affiliation of senti-
ments, and the expression thereof is not punishable in this country by
law; hut any affidavit, founded even upon mere information or belief,
charging a breach of any public law regulating acts* against the peace
!)r safety of a foreign state, will lead to an examination and a prosecu-
tion by the district officers of the United States wholly at the public
cost should the facts thus alleged ex parte be found to bring the matter
within the purview of the statute.

"The law, being so in control of the case, must follow it to the end.
The Executive has no authority over the judiciary. The expressions of
sympathy cannot be controlled, however misplaced. The acquittal of
persons charged with the most detestable crimes against society, some-
times in the face of overwhelming evidence of guilt, is frequently
s^mpanied by the acclaim of a reckless, unthinking body of sympa-
thizers.

"The Grovernment of the United States is able confidently to aver the
Mest compliance, uberrima fide^ with its obligations to the friendly
power of Spain, and to avow also its readiness to set in motion instantly
^U the ample machinery of its laws to prevent and punish any invasion
of or intrusion upon her peace, her honor, and her possessions.

"The indignation yon feel, and which is reflected in your note, is
donbUess very natural, but in the name of the United States, and in
the interest of the harmony and good understanding which it is our
common duty and pleasure to endeavor to maintain, I am constrained
to deprecate the deflection of any portion of that indignation from its
'estimate objects towards the Government of the United States or its
)fficials, who, I am glad to say, heartily join with you in reprobation of
hose who defy law, whether in Cuba or in the United States.
^'In conclusion, permit me to assure you that if any attempt on your
art or by your a«:ents to cause the laws applicable to the case, and the .
S.. Mis. 162— Vol. hi 40 625

{

the governors of States to aid in enforciDg neutrality laws. Aft«
statute of April 20, 1818, tlie President (and sometioies the Seen
of State acting for bim) addressed circular letters, or special lette
the attorneys-general, or to district attorneys and marshals, ai
case migbt require, calliug for their assistance in preserving nentr
Among these letters the foUowiag may be mentioned:

Mr. Calhoaii, Bee. of State, to Mr. HoffmM, Sept. 21, 1844. MS8. Dom.
Mr. BachaDao, Sec. of State, ciicalar, Ang. 30, 194^, ibid.; Mr.CL
Sec. of State, circalan, Ang. 8 and 10, IB49, Jaii.23, aadMayl?, IKO,
Mr. Marcy, See, of State, cironlar, June 5, 1S54, ibid. ; Mr, Seward, !
SUte, circular, April 6, 1861, ibid.; Mr. Fisb, Sec, of State, toHr.
July 24, 1869, ^ar. 4, 1870, ibid.; Mr. J. C. B. Davia, AotingSeo. of
to Mr. Akcnnu), Ang. 1. 1870, ibid. ; Mr. Fisti, Sec. of State, to Mr. ]
pout, Feb. 19, 1676, j&i<f. ; to Mr. Blim, Ang. 19, aailNov. 1, 1876, ibi
Mr. Taft, Nov. 13, J876, and Jan. 13, 1B77, ibid. ; Mr. F. W. Seward, i
Sec. of State, to Mr. Doveas, Apr. 25, 1877, ibid. ; Mr. Evarts, Sec. of
to Mr. Devene, June 5, 1877, ibid; to Maaars. Sullivan «1 a(., Dec. 17,
ibid., to Mr. Kobbe, Jon. 9, 1878. ibid.

Bevised Statutes, § 5290, provides that "the several collectors (
customs shall detain any vessel manifestly bnilt for warlike pnri
and about to depart the United States, the cargo of which princi
consists of arms and mnnitions of war, when the nnmber of men ahi
on board, or other circumstances, render it probable that snch vea
intended to be employed by the owners to craise or commit hosti
npon the subjects, citizens, or property of any foreign prince or i
or of any colony, district, or people with whom the United States i
peace, nniil the decision of the President is had thereon, or unti
owner gives such bond and security as is required of the owni
armed vessels by the preceding section."

By § 5201, "the provisions of this title shall not be constxu
extend to any subject or citizen of any foreign prince, state, C(
district, or people who is transiently within the United States
[enliat] enlists or enters himself on board of any vessel-of-war, let

. XXI.] DEGEEE OP VIGILANCE TO BE EXERCISED. [§ 402.

citizen of the United States who has violated its neutrality can-
shelter himself under a commission from a foreign belligerent.

The BeUo Commes, 6 Wheat., 152.

IhQ Government of the United States having recognized the exist-
iiic^e of a civil war between Spain and Buenos Ayres and avowed ade-
:eircnination to remain neutral between the parties, and to allow to each
tlie same rights of asylum and hospitality and intercouse, each party
LS to be deemed a belligerent nation, having sovereign rights of war,
tliongh the independence of the colony has not been acknowledged by
OS. All captures made by each must be Considered as having the same
validity, and all the immunities which may be claimed by public ships
in our ports, under the law of nations, must be considered by the courts
as equally the right of each.

The Santissima Trinidad, 7 Wheat., 283.

That a United States district judge has power to require a person,
who has given just ground to suspect him of an intent to violate the
neatrality laws, to give bond that he will observe them, see United
States V. Quitman,' li Am. L. Beg., 645.

When an officer belonging to a military force ordered out by the Pres-
ident, under the neutrality act of March 10, 1833, § 8 (5 Stat., 214), <' to
prevent the violation and to enforce the due execution" of the act, and
instracted by his commanding general to execute that purpose, seized
property, as a precautionary means to prevent an intended violation of
the act, with a view of detaining it until an offtcer having the power to
seize and hold it for the purpose of proceeding with it in the manner
direeted by the statute could be procured and act in the matter, it was
held that the seizure was lawful.

Stonghton r. Dimick, 3 Blatch., 356; 29 Vt., 535; Circ. (Vt.). 1855.

A vessel under arrest, to prevent her from cruising against belliger-
ent powers, may be discharged on the order of the President, commu-
^cated to the marshal having her in custody.

1 Op., 48, Bradford, 1794.

A state of neutrality does not require a nation to*prevent its seamen
^i^m employing themselves in contraband trade.

1 Op., 61, Lee, 1796.

A citizen of a neutral state who, for hire, serves on a neutral ship
f^Ployed in contraband commerce with a belligerent power, is not pun-
^^bable personally, according to the law of nations, though taken in the
^t by that belligerent nation to whose detriment the trade would

operate.

Ihii, See iupra, $ 375.

627

§ 402.] NEUTRALITY. [CHAP. XXL

Where certain vessels being constructed in tlie United States for Mex-
ico for the pnrpose of waging war against Texas (an independent
state) were not delivered, nor the property changed, within our juris-
diction, but were sent out of port under control of our own citizens un-
armed, aiid where every possible precaution had been taken to insure
pacific conduct on the high seas, it was held that although the sale was
made abroad, if the vessels were equipped by American citizens within
the United States for belligerent purposes, and for a nation belligerent
to another with which ours was at peace, knowing the purposes for which
they were to be employed, such equipment was repugnant to the act of
1818. (3 Stat., 447; R. S., § 6283.)

3 Op., 741, Legar6, 1842.

The test of the violation of the laws of the United States against inter-
ference with foreign governments is the commission of an overt act.

8 Op., 472, Cashing, 1855.

The neutrality act of 1818 is not restricted in its operation to cases of
war between two nations or where both parties to a contest have been
recognized as belligerents, that is, as having a sufficiently organized polit-
ical existence to enable them to carry on war. It would extend to the
fitting out and arming of vessels for a revolted colony, whose belliger-
ency had not been recognized, but it should not be applied to the fitting
out, etc., of vessels for the parent state for use against a revolted colony
whose independence has not in any manner been recognized by our Gov-
ernment.

13 Op., 177, Hoar, 1869.

Proof that a vessel transported from Aspinwall to the coast of Cuba
men, arms, and munitions of war, destined to aid the Cuban insurgents,
is insufficient by itself to call for proceedings against such vessel for
violation of the neutrality law of the United States. (Rev. Stat, § 6281 ff,}

13 Op., 541, Akerman, 1871.

The papers presented by the Secretary of State in the case of th^
Virginius do not establish any violation of the neutrality laws, eithei'
by the owners of the steamer or by the persons engaged thereon.

14 Op., 49, Bristow, 1872.

As to the Virginias, see more fully «tipra, ( 327.

As to the "armed neatrality,'' see 1 John Adams' Works, 333; 3 ibid., ZSiO, 352;
7 ibid,, 263, 322, 460, 544, 595, 636.

As to controversies in relation to neutral rights, see article by Mr. Tresoot iu.
Southern Quarterly Review for Apr., 1854, 437/.

The correspondence, in 1856, with Great Britain relative to the war then pend-
ing between Great Britain and Kussia, vriU be foundin Brit, and For. St. Pap.,
1857-'58, vol. 4§.

For a discussion of the policy of neutrality adopted by the United States under
the Presidency of Washington, see 1 Phill. Int. Law (3 ed.), 555.

For a statement of Mr. Canning in reference to the neutral policy of the United
States, see 3 Phill. Int. Law (3 ed.}, 242.

628

CHAP. XXI.] DEGREE OF VIGILANCE TO BE EXERCISED. [§ 402.

** The great statesmen who wisely and firmly gaided the policy of
the United States daring the first twenty years after the recognition
of their Federal Republic as an independent power, a period of almost
unprecedented conflict and excitement among the principal commu-
uities of the civilized world, deserve the credit of having done most
to ascertain and to establish the sound principles on which nentrals
should act towards belligerents. When war broke out between England
and revolutionary France in 1793, attempts were made by the French
agents to use the American ports for fitting out cruisers against En-
glish commerce. On complaint of this being made by the British minis-
ter to General Washington, the President of the United States, a formal
declaration was issued by Mr. Jefferson, the Foreign Secretary of State,
which declared that ' it is the right of every nation to prohibit acts of
sovereignty from being exercised by any other within its limits.' So far
Mr. Jefferson was only following older authorities. Bat the American
statesman went further, and pronounced that ^ it is the duty of a neutral
nation to i^rohibit such acts as would injure one of the warring powers.'
This important principle was first clearly stated thus, and was consist-
ently acted on by the new Eepublic after the jurists of the Old World had
long written confusedly and donbtingly, and after the statesmen of the
Old World had long been 'incoherent' in their practice with regard to it."

Creasy's Int. Law, 572.

The United States and British neutrality statutes, and the decisions under them,

are elaborately discussed by Mr. Abdy in Abdy's Kent (1678), W^ff,
As to enforcement of neutrality by Great Britain, during the late civil war in

the United States, see Senate Ex. Doo. 11, 41st Cone., 1st sesa

'^But though it is an entire mistake to say that the American act of
?SX8 was in any respect superior to the British act of the ensning year,
it IS true that, since the time the American act was passed, the working
^^ the legal administration in the United States has become, for the
Pttxpose of proceeding against a suspected vessel, in one respect better
^ ^n that of Great Britain. It appears that in each district of the
^^■^ited States there is a resident legal oflScer of the Federal Govern-
m^^it, called the district attorney, to whom^ if the action of the Gov-
^'^^^ment is invoked, a question of this kind is referred, and whose duty
'^^ ic to ascertain the facts, collect the evidence, and report to the Gov-
^^^^ment. Such an offtcer is, no doubt, better adapted to such a purpose
^^^n a collector of customs. But can it be said to have been the duty
^^ ^the British Government, not having similar district officers, to ap-
point such, at the different ship-building ports, with a view the better
^ X>Totect belligerents against ships being equipped or armed against

. ^^Another advantage of the American system is, that the duty of ad-

^.^^icating in such a case devolves on a judge in the court of admiralty

J^^tead of on a jury, who are sometimes apt to be swayed in favor of

^^^ir own countrymen when sued at the instance of foreigners. But

^^^^ relates to the condemnation of vessels, not to their seizure. And

^^t:h the exception of the Florida and Alabama, every vessel the seiz-

^^*^ of which could be asked for, as instanced in the cases of the Alex-

^<3ra, the Pampero, and the iron-clad rams at Birkenhead, was seized

^^ prevented from doing any harm to the commerce of the United

^^ates. The Alexandra, it is true, was released after trial in England,

^^t she was seized again at ITassau, and not liberated till after the

dose of the war. Practically speaking, therefore, in the later cases,

§402a.J NEUTRALITY. [CHAP

overytbiug was accomplished which could have resulted from the
perfect machinery that coald have been devised for such a pnrpc

Sir A. Cockbarn, opinion in Geneva Tribunal of 1872.

In the same opinion in the Geneva Tribunal (Treaty of Washington 1
vol. 4, 301, ^.,) the various "filibustering" expeditions Trhicl
started in the United States are reviewed -with great zest.

«*'Of the great trading nations, Ameoica is almost the only on
has shown consistency of principle. The firmness and thorough i
standing of the laws of nations, which during this war [the F
devolution] she has displayed, must forever rank her high in the
of enlightened communities."

Ward's Rights and Duties, i&c., 166 ; cited in Bonus' American Neatrali

^'The conduct of the United States with respect to this matte
principles professed by the armed neutrality of 1780] has been,
the most trying circumstances, marked, not only by perfect consis
but by preference for right and duty over interest and the exx>e€
of the momenf

3 Phill. Int. Law, 282 ; quoted in Bemis' American Nentralit j, 28.

The effect of President Johnson's proclamation in putting do
the United States cooperation with the *< Fenian" invasion of Can;
noticed in Bemis' American ITeutrality, 92. As to the action of '.
dents Van Buren and Fillmore in suppression of similar invasi
Canada, see supra, §§ 21, 50 c.

(2) Rules of 1871 and Grneva tribunal.

§ 402 a.

Article VI of the Treaty of Washington of 1871, providing, a
other things, for an arbitration to determine British liability fo
depredations on the commerce of the United States by tixe Ala
^nd other Confederate cruisers which left British waters, is as fol

''In deciding the matters submitted to the arbitrators they shall be goren
the following three rules, -which are agreed npon by the high contracting pan
rules to be taken as applicable to the case, and by such principles of intemationi
not inconsistent therewith, as the arbitrators shaU determine to have been appi
to the case :

"RULES.

" A neutral Government is bound— *

" First. To use due diligence to prevent the fitting out, arming, or equipping, ^
its jurisdiction, of any vessel which it has reasonable ground to believe is inten
«ruise or to carry on war against a power with which it is at peace ; and also
like diligence to prevent the departure from its Jurisdiction of any vessel inten
<;ruise or carry on war as above, such vessel havint; been specially adapted, in wl
in part, within such Jurisdiction, to warlike use.

''Secondly. Not to permit or suffer either belligerent to make use of its p<
waters as the base of naval operations against the other, or for the purpose
renewal or augmentation of military supplies or arms, or the recruitment of m

"Thirdly. To exercise due dUigence in its own ports and waters, and as to a
sons within its Jurisdiction, to prevent any violation olTthe foregoing obligatioi
duties.

630

CHAP. XXI.] RULES OF 1871 AND GENEVA TRIRUNAL. [§ 402a.

'' Her Britannic Majesty hfOS commanded her liigh commissioners and plenipoten-
tiarioa to declare that Her Majesty's Government cannot assent to the foregoing rolea
as a Btatemont of principles of international law which were in force at the time
wben the claims mentioned in Article I arose, but that Her Majesty's Govemmenty
in order to evince ita desire of strengthening the friendly relations between the two
countries, and of making satisfactory provision for the fatiire, agrees that in deciding
the q^nestions between the two countries arising out of those claims, the arbitrators
should assame that Her Majesty's Government had undertaken to act upon the prin-
ciples set forth in these rules.

''And the high contracting parties agree to ohserve these rules as between them-
eelves in future, and to bring them to the knowledge of other maritime powers, and
to invite them to accede to them."

DECISION AND AWARD

M€Utt ly tke tribunal of arbitration conatltuied by virtue of the first article of the treaty
concluded at Washington theSth of May, 1871, between the United States of America and
Ber Majesty ike Queen of the United Kingdom of Great Britain and Ireland,

1*lie United States of America and Her Britannic Majesty having agreed by Article
^ ^f the treaty concluded and signed at Washington the 8th of May, 1871, to refer all
ta« claims '' generically known as the Alabama claims " to a tribunal of arbitration to
^ composed of five arbitrators named : *

One by the President of the United States,
'One by Her Britannic Majesty,
^Oije by His Majesty the King of Italy,
One by the President of the Swiss Confederation,
One by His Majesty the Emperor of Brazil ;

^tid the President of the United States, Her Britannic Majesty, His Majesty the
g of Italy, the President of the Swiss Confederation, and His Majesty the Em-
P^*^r of Brazil having respectively named their arbitrators, to wit :
^be President of the United States, Charles Francis Adams, esquire ;
^er Britannic Majesty, Sir Alexander James Edmund Cockburn, baronet, a member
^^ ^er Majesty's privy council, lord chief Justice of England ;

^is Mtgesty the King of Italy j'His Excellency Count Frederick Sclopis, of Salerauo,
^ knight of the Order of the Annunciata, minister of state, senator of the Kingdom
^^ Italy;

'X]*lie President of the Swiss Confederation, M. James Stampfli;
^Is Majesty the Emperor of Brazil, His Excellency Marcos Antonio d'Aranjd, Vis-
^onnt dItajubiC, a grandee of the Empire of Brazil, member of the council of H. M.
^^^ Emperor of Brazil, and his envoy extraordinary and minister plenipotentiary in
*^*^Bce.

And the five arbitrators above named having assembled at Geneva (in Switzerland)
'^'^ one of the chambers of the H6tel de Ville on the 15th of December, 1871, in conform-
^^y ^ith the terms of the second article of the Treaty of Washington, of the 8th of May
^f tbat year, and having proceeded to the inspection and verification of their respective
Po'^ere, wfiich were found duly authenticated, the tribunal of arbitration was declared
^oly organized. •

The agents named by each of the high contracting parties, by virtue of the same
^^^iclell, towit:

^or the United States of America, John C. Bancroft Davis, esq. ;
And for Her Britannic Majesty, Charles Stuart Aubrey, Lord Tenterden, a peer of
^ne United Kingdom, companion of the Most Honorable Order of the Bath, assistant
I ^ ^^der-secretary of state for foreign affairs ;

I ^hofie powers were found likewise duly authenticated, then delivered to each of

1 tUe arbitrators the printed case prepared by each of the two parties, accompanied by

§ 402a.] NEUTRALITY. [CHAP. X3

•

the docamentSy the official correspondencCi and other OTidence on which each lelic
in conformitj with the terms of the third article of the said treaty.

In yirtne of the decision made hj the tribonal at its first session, the connter-ci
and additional docaments, conespondencei and evidence referred to in Article IV
the said treaty were delivered by the respective agents of the two parties to the s
retary of the tribnnal on the 15th of AprU, 1872, ^t the chamber of conference, at i
H6tel de Ville of Geneva.

The tribunal^ in accordance with the vote of adjournment passed at their seco
session, held on the 16th of December, 1871, re-assembled at Greneva on the 15th
Jane, 1872 ; and the agent of each of the parties doly delivered to each of the az
trators, and to the agent of the other party, the printed argument referred to
Article V of the said treaty.

The tribnnal having since fally taken into their consideration the treaty, and a
the cases, counter-cases, documents, evidence, and arguments, and likewise all otl
communications made to them by the two parties during the progress of their e
tings, and having impartially and carefully examined the same.

Has arrived at the decision embodied in the present award :

Whereas^ having regard to the sixth and seventh articles of the said treaty, the ar
trators are l)ound under the terms of the said sixth article, " in deciding the matk
submitted to them, to be governed by the three rules therein specified and by SQi
principles of international law, not inconsistent therewith, as the arbitrators slu
determine to have been applicable to the case ; "

And whereas the ** due diligence " referred to in the first and third of the said mli
ought to be exercised by neutral Governments in exact proportion to the risks to whic
either of the belligerents may be exposed, from a failure to fulfill the obligations (
neutrality on their part ;

And whereas the circumstances out of which the facts constituting the subject-mal
ter of the present controversy arose were of a nature to call for the exercise on tb
part of Her Britannic Majesty's Government of all x>ossible solicitude for the obaerr
ance of the rights and the duties involved in the proclamation of neutrality issaed
by Her Majesty on the 13th day of May, 1861 ;

And whereas the effects of a violation of neutrality committed by means of th<
construction, equipment, and armament of a vessel are not done away with by so?
commission which the Government of the belligerent power, benefited by the viols
tion of neutrality, may afterwards have granted to that vessel ; and the ultioattc
step, by which the offense is completed, cannot be admissible as a ground for tbeftlv
solution of the offender, nor can the consummation of his fraud become the meaiu oi
establishing his innocence ;

And whereas the privilege of extra-territoriality accorded to vessels of war hasbMH
admitted into the law of nations, not as an absolute right, but solely as a prooeediog
founded on the prinsiple of courtesy and mutual deference between different nstiooi,
and therefore can never be appealed to for the protection of acts done in violation of
neutrality;

And whereas the absence of a previous notice cannot be regarded as a failure in sd7
consideration required by the law of nations, in those cases in which a vessel cani^
with it its own condemnation ; *

An^ whereas, In order to impart to any supplies of coal a character inconsistent witfi
the second rule, prohibiting the use of neutral ports or waters, as a base of naval op^
ations for a belligerent, it is necessary that the said supplies should be conneotM
with special circumstances of time, of persons, or of place, which may combino to
give them such character ;

And whereas, with respect to the vessel called the Alabama, it clearly results fi^^
all the facts relative to the construction of the ship at first designated by tbennffibei
«290'' in the port of ' Liverpool, and its equipment and armament in the vieinity ^'^
Terceira through the agency of the vessels called the Agrippina and the BahamSi dit*

G32

CHAP. XXI.] RULES OF 1871 AND GENEVA TRIBUNAL. [§ 402a.

patched from Great Britain to that end, that the British Goyernment failed to nse
dae diligence in the performance of its neutral obligations ; and especially that it
omitted, notwithstanding the warnings and official representations made by the dip-
lomatic agents of the United States daring the construction of the said number " 290,"
to take in dae time any efifective measures of prevention, and that those orders which-
it did giye at last, for the detention of the yessel, were issued so late that their exe-
cation was not practicable ;

And whereas, after the escape of that vessel, the measures taken for its pursuit and
arrest were so imperfect as to lead to no result, and therefore cannot be considered
mfficient to release Great Britain from the responsibility already incurred ;

And whereas, in despite of the violations of the neutrality of Great Britain com-
mitted by the ''290,'' this same vessel, later known as the Confederate cruiser Ala-
bama, was on several occasions freely admitted into the ports of colonies of Great
Britain, instead of being proceeded against as it ought to have been in any and every
port within British Jurisdiction in which it might have been found ;

And whereas the Government of Her Britannic Majesty cannot justify itself for a
failure in dno diligence on the plea of insufficiency of the legal means of action which
it possessed :

Four of the arbitrators, for the reasons above assigned, and the fifth, for reasons
separately assigned by him, are of opinion that Great Britain has in this case failed,
by omission, to fulfill the duties prescribed in the first and the third of the rules es-
tablished by the sixth article of the Treaty of Washington.

And whereas, with respect to the vessel called the Florida, it results from all the facts
nlative to the construction of the Oreto in the port of Liverpool, and to its issue
therefrom, which facts failed to induce the authorities in Great Britain to resort to
oteasores adequate to prevent the violation of the neutrality of that nation, notwith-
standing the warnings and repeated representations of the agents of the United
Btates, that Her Majesty's Government has failed to use due diligence to fulfill the
daties of neutrality ;

^d whereas it likewise results from all the facts relative to the stay of the Oreta
*t Nassau, to her issue from that port, to her enlistment of men, to her supplies, and
to her armament, with the co-operation of the British vessel Prince Alfred, at Green
Cay, that there was negligence on the part of the British colonial authorities;

^d whereas, notwithstanding the violation of the neutrality of Great Britain com-
mitted by the Oreto, this same vessel, later known as the Confederate cruiser Florida^
^^ nevertheless on several occasions freely admitted into the ports of British colo-
^««;

'^whereas the judicial acquittal of the Oreto at Nassau cannot relieve Great
^^tain from the responsibility incurred by her under the principles of international
^W; nor can the fact of the entry of the Florida into the Confederate port of Mobile,
^'^ of its stay there during four months, extinguish the responsibility previously ta
^•^t time incurred by Great Britain ;

^cr these reasons the tribunal, by a majority of four voices to one, is of opinion'
;hat Great Britain has in this case failed, by omission, to fulfill the duties prescribed
^'^ the first, in the second, and in the third of the rules established by Article VI of
^^« Treaty of Washington.

-^nd whereas, with respect to the vessel called the Shenandoah, it results from all

^ facts relative to the departure from London of the merchant- vessel the Sea King,

f^^ to the transformation of that ship into a Confederate cruiser under the name of

J^^ Shenandoah, near the island of Madeira, that the Government of Her Britannic

^Mesty is not chargeable with any failure, down to that date, in the use of due dili-

^**ice to fulfill the duties of neutrality ;

^Qt whereas it results from all the facts connected with the stay of the Shenan-

^h at Melbourne, and especially with the augmentation which the British Govem-

. *^^t itself admits to have been clandestinely effected of her force, by the enlistment

633

§ 402a.] NEUTRALITY. [CHAP. XXI.

of men -witliin that port, that there ivas ncgligcnco on the part of the antboiitiei} at
that place :

For these reasons the trihunal is unanimoasly of opinion that Great Britain basuot
failed, by any act or omission, ''to fulfill any of the daties prescribed by thetbiM
rnles of Article YI in the Treaty of Washington, or by the principles of international
law not inconsistent therewith,'' in respect to the vessel called the Shenandoah, dur-
ing the period of time anterior to her entry into the port of Melbourne ;

And, by a majority of three to two voices, the tribunal decides that Great Britain
has failed, by omission, to fulfill the daties prescribed by the second and third of the
rules aforesaid, in the case of this same vessel, from and after her entry into Hobeon'i
Bay, and is therefore responsible for all acts committed by that vessel after her de-
parture from Melbourne, on the 18th day of February, 1865.

And so far as relates to the vessels called the Tuscaloosa (tender to the Alabama),
the Clarence, the Tacony, and the Archer (tenders to the Florida), the tribunal is
ananimonsly of opinion that snch tenders or auxiliary vessels, being properlj re-
garded as accessories, must necessarily follow the lot of their principals, and be anb-
mitted to the same decision which applies to them respectively.

And so far as relates to the vessel called Retribution, the tribunal, by a majority of
three to two voices, is of opinion that Great Britain has not failed by any act or
omission to fulfill any of the duties prescribed by the three rules of Article YI intbe
Treaty of Washington, or by the principles of international law not inconsisteot there-
with.

And so far as relates to the vessels called the Georgia, the Sumter, the Kaahville,
the Tallahasee, and the Chickamauga, respectively, the tribunal is unanimondyof
opinion that Great Britain has not failed, by any act or omission to fulfill any of the
-duties prescribed by the three rules of Article YI in the Treaty of Washington, or by
the principles of international law not inconsistent therewith.

And so far as relates to the vessels called the Sallie, the Jefferson Davis, the Mosie,
the Boston, and the Y. H. Joy, respectively, the tribunal is unanimously of oplnie&
that they ought to be excluded from consideration for want of evidence.

And whereas, so far as relates to the particulars of the indemnity claimed by tbe
United States, the costs of pursuit of the Confederate cruisers are not, in tbe judg-
ment of the tribunal, properly distinguishable from the general expenses of thenar
-carried on by the United States:

The tribunal is, therefore, of opinion, by a majority of three to two voices, that
there is no ground for awarding to the United States any sum by way of indemnity
under this head.

And whereas prospective earnings cannot properly bo made the subject of com-
pensation, inasmuch as they depend in their nature upon fatnre and uncertain coo-
tingencies:

The tribunal is unanimously of opinion that there is no ground for awaidio}^ to
the United States any sum by way of indemnity under this head.

And whereas, in order to arrive at an equitable compensation for the damages
which have been sustained, it is necessary to set aside all double claims for tbe sao*
losses, and all claims for "groaa freights," so far as they exceed ''net freights";

And whereas it is just and reasonable to allow interest at a reasonable rate;

And whereas, in accordance with the spirit and letter of the Treaty of WasbingtoOi
it is preferable to adopt the form of adjudication of a sum in gross, rather than to
refer the subject of compensation for further discussion and deliberation toaboart
of assessors, as provided by Article X of the said treaty:

The tribunal, making use of the authority conferred upon it by Article VII ^^^
said treaty, by a majority of four voices to one, awards to the United States a H*
of J.15,500,000 in gold, as the indemnity to be paid by Great Britain to theUnit*^
States, for the satisfaction of all the claims referred to the consideration of the tribB*
nal, conformably to the provisions contained in Article YII of the aforesaid trealy«

C34

XI.] RULES OF 1871 AND GENEVA TEIBUNAL. [§ 402a.

accordance with the terms of Article XI of the said treaty, the trihanal
hat ''all the claims referred to in the treaty as submitted to the trihanal
r fally, perfectly, and Anally settled."
more, it declares that "each and every one of the said claims, whether the

or may not have been presented to the notice of, or made, preferred, or

» the trihanal, shall henceforth be considered and treated as finally settled,

id inadmissible."

mony whereof this present decision and award has been made in dnpli-

signed by the arbitrators who have given their assent thereto, the whole

sxact conformity with the provisions of Article VII of the said Treaty of

on.

id ooncladed at the H6tel do Ville of Qeneva, in Switzerland, the 14th day

ith of September, in the year of oar Lord one thonsand eight hundred and

wo.

Chables Francis Adams.

Frederick Sclopis.

STXBfPFLI.

VlCOMTE D'ItAJUBX.

llowing extracts are taken from the opinions of the arbitrators:

he first of the rules laid down in Article VI of the Treaty of
rton mention is made of the due diligence to prevent the bnild-
ipment, and arming of vessels, which a Government is bound
ise, when it has reasonable ground to believe that this building,
and equipping are for the purpose of furnishing warlike aid to
he belligerents.

same words occur again in the third rule, while they are want-
le second. ^ Why sot' asked Lord Cairns in the debate on the
hich took place in the House of Lords on the 12th June of last
t seems to me that it might be answered ; because; in the case
rst and third rules there is room for investigations of persons
umstances to ascertain the facts denounced, whereas the second
o a series of evident facts on which no inquiry need be made as
credibility.

lat,' continued the noble lord, ' is the standard by which you can
due diligencet Due diligence, by itself, means nothing. What
iligeuce with one man, with one power, is not due diligence with
man, with a greater power.'

diligence, then, is determined, in my opinion, as I have already

the relation of the matter to the obligation imposed by law.

It is the measure of the sufficient reason f It will be furnished

)rinciples of the law of nations, and the character of the circura-

sscl, thoroughly fitted out for war, leaves the shores upon which
een built without receiving its armament ; a simple merchant
s charged with the transport of its armament ; the place of
is fixed, and there the arming of the vessel is completed. The
done. But the judge cannot allow his reason and conscience to
stray by such stratagems. On the contrary, the maneuver will
Donstrate more clearly the criminality of both vessels,
turn, then, to what was said by Sir Kobert Peel in a memorable
lelivered in the House of Commons on the 28th April, 1830. ' If
ps were on board one vessel and their arms in another, did that
ly difference!' and I do not hesitate to say that if the vessel was
it for war and ready to receive her armament, and her arms were
i another vessel, it made no difference. • • •

035

§ 402a.] NEUTRALITY. [CHAP. XXI.

'^ There is no groand to fear that the application of these roles can go
so far as to violate the principles on which national GovernmeDts rest.
The natnre of the engagement does not reach that point. It is very
possible that their application way sometimes embarrass Governments
in their political conduct, bat it will more often prevent disorders cap-
able of leading to misfortunes which could not be sufficiently deplored.

" The rules of the sixth article of the Treaty of Washington aredes*
tined to become principles of universal law for the maintenance of nea-
trality. The very text of the treaty says so, and Mr. Gladstone and
Lord Granville have always, and with reason, insisted on this prospect-
ive benelit to civilization. In order to realize it, the several Govern-
ments must take measures to obtain fitting powers for the execution of
the law. As regards the past, there have been great discrepancies on
this point in the legislation of different nations. The United States^
with their district attorneys, their marshals, and organized police offi-
cers, were better assisted than England was, with its customs and ex-
cise officers only. I do not doubt that these views will be received, if
the Treaty of Washington is to be carried out in earnest, and it would
be a great misfortune if it were not." •

Coant Sclopis.

'< If, then, a vessel, built on neutral territory for the use of a belliger'
ent, fraudulently, and without the knowledge of the neutral, comes again
within the jurisdiction of the sovereign whose neutrality it has vicii^j
it ought to be seized and detained ; for it is impossible to allow to snch
vessel the same extra-territorial rights aa are allowed to other belligerent
vessels of war, built in accordance with law and without any inflection
of neutrality. The commission with which such a vessel is provided is
insufficient to protect her as against the neutral whose neutrality she
has violated.

'<And how can the belligerent complain of the application of tbis
principle t By seizing or detaining the vessel the neutral only prevents
the belligerent from deriving advantage from the fraud committed
within his territory by the same belligerent ; while by not proceeding
against a guilty vessel, the neutral justly exposes itself to having its
good faith justly called in question by the other belligerent.

'' This principle of seizure, of detention, or at any rate of preliminary
notice that a vessel, under such circumstances, will not be received in
the ports of the neutral whose neutrality she has violated, is fair and
salutary, inasmuch as it is calculated to prevent complications between
neutrals and belligerents, and to contribute toward freeing neutrals
from responsibility by proving their good faith in the case of a frand
perpetrated within their territory.

<' The converse of this principle is repugnant to the moral sense, for
it would be allowing the fraudulent party to derive benefit from his
fraud.

*' The rules established by the Empire of Brazil confirm the principle
which we have just laid down, for in its regulations respecting neutrality
directions are given —

** $ 6. Not to admit into the ports of the Empire a belligerent \rho has onccTioUted
the neutrality ; and,

**i7. To compel Tessels which may attempt to violate the neatrality to lesiTe thd
maritime territory of the Empire immediately, without sapplying them with anytbin^
whatever.

HAP. XXI.] EULE8 OF 1871 AND GENEVA TRIBUNAL. [§ 402 a

^'In fine, the commission with which'a vessel-of-war maybe provided
as DOt the power to protect her as against the neutral whose neutrality
he has previously violated."

Yiscoant D'lts^abd.

'^The fact that a vessel, built in contravention of the laws of ueu-
rality, escapes and gets out to sea, does not free that vessel from the
esponsibility she has incurred by her violation of neutrality ; she may,
herefore, be proceeded against if she returns within the jurisdiction of
beinjared state. The fact of her having been transtbrred or commis-
ioned in the mean while does not annul the violation committed unless
be transfer or commissioning, as the case may be, was sl bona fide tTSLU^-

Mr. SUimpfli.

^' It may be inferred that the sense of the words ^ due diligence ' is
hat of * earnest labor owed to some other party,' which that party may
laim as its right.

^'Bot, if this definition be conceded, it must naturally follow that the
latareand extent of this obligation cannot be measured exclusively by
he judgment or pleasure of the party subject to it. If it could, in the
dioary transactions between individuals, there would be little security
or the faithful performance of obligations. If it were not that the
^arty to whom the obligation has been given retains a right to claim it
Q the sense that he understands it, his prospect of obtaining justice in

contested case would be but slight.

*4f this view of the meaning of the words be the correct one, itfol-
)W8 that, when a neutral Government is bound, as in the first and third
ales laid down in the treaty for our guidance, to use * due diligence' in
egard to certain things, it incurs an obligation to some external party,
be Dature and extent of which it is not competent to it to measure ex-
lasively by its own will and pleasure. • • •

"To suppose that the moral stain attached to a transaction of this
haracter can be wiped out by the mere incident of visiting one place
r aDother, without any material alteration of the constituent body in-
piring its action, seems to me to be attaching to an accident the virtue
rhich appertains solely to an exercise of the will. I cannot, therefore,
DQcede to this notion any shade of weight. The vessel called the
loiida, in my view, carried the same indelible stamp of dishonor from
J^ cradle to its grave ; and in this opinion I have been happy to dis-
over that I am completely sustained by the authority of one of the
lost eminent of the jurists of my own country who ever sat in the
ighest seat of her most elevated tribunal. I find it recorded in one of
he volumes submitted to our consideration by the agent of Her Maj-
sty's Government^ from which I pray for leave to introduce the fol-
)wing extract, as making an appropriate close :

"^If this were to be admitted/ Bays Chief-Justice Marshall, * the laws for the preser-
ation of OUT neutrality would be completely eluded. Vessels completely fitted in our
ortsfor military expeditions need only sail to a belligerent port, and there, after ob-
kioiog a commission, fro through the ceremony of discharging and re-enlisting their
nnr, to become perfectly legitimate cruisers, purified from every taint contracted at
M place where all their real force and capacity for annoyance was acquired. This
ooJd, indeed, be fraudulent neutrality, disgraceful to our own Government and of
bich no nation would be the dape.'

'* For the reasons herein specified, I have come to the conclusion in the
se now presented of the Florida, that Oreat Britain, by reason of her

637

§ 402a.] NEUTRALITY. [CHAP. XXI.

omission to use due diligence to prevent the fitting-oat, arming, and
equipping within its jarisdiction of that vessel, and farther of her omis-
sion to forbid the crew of that vessel from making use of its ports or
waters as the base of operations against the Unit^ States, has Med
to falfiU the duties set forth in each and every one of the three roles
prescribed to the arbitrators as their guide under the terms of the
Treaty of Washington. • • •

^^ Let us see how these restraints on neutral commerce became settled
in time. As they existed till a very recent x>6riod, according to the
general practice of nations, they were as follows :

<< 1. Though the belligerent might resort to the neutral territory to
purchase such articles as he required, even for his use in war, and the nea-
tral in selling him such articles would be guilty of no infraction of
neutrality, yet, in regard to things capable of being used in war, and
which thenceforth received the appellation of * contraband of war,' if,
instead of the belligerent himself conveying them, the neutral under-
took to convey them, such articles, if intercepted by the adversary,
though the property of the neutral in them had not been transferred to
the belligerent, were liable to be seized and became forfeited to the
captor. If the article was of a doubtful character, aneipitis ti^tw, that is,
one that might be applied to purposes of peace or of war, the liability of
seizure depended on whether the surrounding circumstances showed
that it was intended for the one use or the other.

'^ 2. If either belligerent possessed sufficient force at sea to bar the
access to a port belonging to his enemy, he was entitled to forbid the
neutral all access to such port for the purpose of trade, however inno-
cent and harmless the cargo with which his ship might be charged,
under the penalty of forfeiting both ship and cargo.

*' 3. The neutral was prohibited from carrying the goods of a belliger-
ent, such goods not being protected by the neutral flag, but being sab-
ject to seizure.

'' 4. Besides this, according to the practice of France, the neutral was
prohibited from having his goods carried iu the enemy's ship, and if the
ship was taken the goods became prize.

" Lastly, to enforce the rights thus assumed by powerful belligerents,
the neutral had farther to submit to what was called the right of search,
in order that the belligerent might satisfy himself whether goods of the
enemy, or goods contraband of war intended for the enemy, were being
conveyed in the neutral ships.

" By the wise and liberal provisions of the declaration of Paris of 1856,
the last two oppressive restraints on the trade of neutrals, mentioned
under heads 3 and 4, have, as between most of the leading nations of
the world, been done away with. The others remain, i^erica has
not as yet formally assented to the declaration of Paris. The twornles
in question do not, however, come into play on this occasion.

'^ But the two first of the restraints put on neutral commerce occnpj
a prominent place in the discussions which have occurred in theconis^
of this inquiry'. Both of them are manifestly restraints, and restraints
of a very serious character, on the natural freedom of neutral commeic^'
The advantage thus acquired of preventing the trade of the neutral in
articles of warlike use, at a time when that trade is the most likely to
be profitable to him, and still more that of preventing it in any shape
by the blockading of an enemy's port, is obviously obtained only at the
expense of the peaceful rights of neutral commerce."

Mr. Adams.
638

XXI.] RULES OF 1871 AND GENEVA TRIBUNAL. [§ 402a.

3 jurists of the seventeenth century, among whom Vinnius occu-
prominent place (Com., Lib. iii, tit. xv), divided the diligentia
[•responding culpa of the Roman law into three degrees. Thus
e culpa lata, levis, levissimaj taking the intermediate degree, or
wisj as being the absence of the diligence which a man of ordinary
ce and care would apply in the management of his own affairs iu
en circumstances of the case. Though attacked by Donellus,
partite division of diligence and defaidt held its ground among
il writers for a considerable time ; but on the formation of the
code, the practical good sense of those by whom that great work
rried out, so visible in their discussions, induced them to discard
to establish one common standand of diligence or care as appli-
) all cases of civil obligations, namely, that of the ^ bon p^re de
»'the ^diligens paterfamilias' of the Eoman digest. The Code
on has been followed in the codes of other countries. Among
the Austrian code has lately adopted the same principle.
) juridical view, too, of the earlier writers was not destined to
ts ground. After it had been assailed by Thibaud and Yon Lohr,
m a most learned and able treatise^ ^ Die Culpa des romischen
^' thoroughly exposed its unsoundness, and his views have since
Uowed by a series of Grerman jurists, including Professor Momm-
his well-known work ^Beltrage zum Obligationsrecht' (vol. iii,

nch authors have for the most part taken the same view. Com-
ors on the code— Duranton, Ducarroy, Troplong, and lastly M.
imbe, in his great work, the ^ Cours du code civil,' — have agreed
Bre can only be one standard for the diligence required in the
)f life, where the interests of others are concerned, namely, that
of ordinary capacity, prudence, and care,
'est ce que la diligence d'un bon p^re de famillcf' asks M. Trop-
[Code civil expliqu6, vol. i, § 371.)

t la diligeDce de celni qui, comme le dit Heineccias, tient le milieu entro I'avare
yeas et rhomme negligent et dissipe. C'est dans le syst^me dont M. Dacar-
organe, et qne j'adopte pleinement, la diligence qa^m individn, assni diligent
onunes le soni ordinairement, apporte h la conservation de ce qai Ini appar-
'n Yoit qa'en ce point lea denz Byst^mes se rencontrent, et conduisent a nne
finition— c'est-^ dire, & ce Juste milieu qui est dans la nature de I'humanit^.'

e only thing to be considered,' says Professor Mommsen, < is
r the default is such as does not occur to a diligent father of a
n general.' * The care to be taken is " qualem diligens pater-
\ suis rebus adhibere soletJ^^^

' A. Cockburn.

view is sustained in detail in Wharton on ITegligence, §§ 59^.,
t is shown that to make business men liable for omission of per-
igence would place them under a burden so heavy as to be in-
le, and that the only proper definition of '< culpable negligence"
ant of such diligence as under the circumstances of the partic-
se good business men of the particular class are accustomed to

re are certain points on which all writers are unanimous, and,
1 till now imagined, all nations agreed.

^vereign has absolute dominion in and over his own ports and

He can permit the entrance into them to the ships of other

, or refuse it; he can grant it to some, can deny it to others; he

039

§ 402a.] NEUTRALITY. [ClIAP. XXI.

can subject it to such restrictions, conditions, or regulations as be
pleases. But, by the universal comity of nations, in the absence of
such restrictions or prohibition, the ports and waters of every nation
are open to all comers. Ships can jfreely enter, and freely stay; can
have necessary repairs done^ can obtain supplies of every kind, and in
unlimited quantity ; and though their crews, when on shore, are subject
to the local jurisdiction, ships of war are considered as forming part of
the territory of the country to which they belong, and, consequeDtly,
as exempt from local jurisdiction ; and, save as regards sanitary or other
port regulations, as protected by the flag under which they sail from
all interference on the part of the local authority.

" Such is the state of things while the world is at peace. But if a war
arises between any two countries, a considerable modification, no donbt,
of the rights both of sovereigns who remain neutral and of those en-
gaged in the war immediately arises.

" While the neutral sovereign has the undoubted right of imposing any
restrictions or conditions he pleases, in respect of any of the foregoing
particulars, on the ships of- war of either belligerent, yet, if he exercises
that right, the equality which is essential to neutrality requires that he
%shall impose them equally on both, and enforce them equally against
both. On the other hand, by the universal accord of nations, the bel-
ligerent is bound to respect the inviolability of neutral waters, and
therefore cannot attack his enemy within them, or make them the base
>of hostile operations. He is subject also to restraint in three other im*
.portant particulars : He cannot recruit his crew from the neutral port;
he cannot take advantage of the opportunity afforded him of having
repairs done to augment in any respect the warlike force of his vessel;
he cannot purchase on the neutral territory arms or munitions of war
for the use of it. These restrictions are iniposed by the law of nations,
independently of any regulations of the local sovereign. Besides this,
the belligerent is bound to conform to the regulations made by the lat-
ter with reference to the exercise of the liberty accorded to him; but
subject to these conditions, a belligerent vessel has the right of asylnm,
that is, of refuge from storm and hostile pursuit; has liberty of entry
and of stay ; that of having the repairs done which are necessary to en-
able it to keep the sea in safety ; and that of obtaining whatever is
necessary for the purpose of navigation, as well as supplies for the sub-
sistence of the crew.

"And, be it remembered — ^I fear it has not always been borne in
mind — the liberty thus afforded is not by the general law subjected to
any limitations as regards length of stay, quantity of supply, or con-
dition as to the future proceedings of the vessel."

Sir A. Cockbum.

Mr. J. 0. B. Davis, in his report, as agent of the American case, to the
Secretary of State, begins by stating the position of the two contending
parties as to " due diligence." On the American side, he declares, it
was argued that such diligence was to be gauged " by the ability of
the party incurring the liability to exercise the diligence required by
the exigencies of the case, and by the extent of the injury which may
follow negligence." On the other side it was said that —

^' Her Majesty's Goyernment knows of no distinction between more dignifiod A&d

less dignified powers; it regards all sovereign states as enjoying equal rights tfid

• equally subject to all ordinary international obligations ; and it is firmly pcrsoaded

640 ^

tl.] RULES OF 1871 AND GENEVA TRIBUNAL. [§ 402a

8 no state in Europe or America which would be willing to claim or accept
uity in this respect on the ground of its inferiority to others in extent,
roe, or population.''

t Sclopis, ill his opinion, says :

»rds due diligence necessarily imply the idea of a relation between the duty
set. It is impossible to define a priori and abstractly an absolute duty of
The thing to wbich the diligence relates determines its degree. • * *
leasure of aciivity in the performance of the duties of a neutral, I think
ng rule should be laid down: That it should be in a direct ratio to the
^er to which the belligerent will be exposed through the laxity of the neu-
i an inverse rati* to the direct means which the belligerent can control for
e danger."

ribunal, in its award, says :

ue diligence referred to in the first and third of the said rulea ought to be
»y neutral Governments in exact proportion to the risks to which either of
rents may be exposed from a failure to fulfill the obligations of neutrality
rt. * ' * The circumstances out of which the facts constituting the
tter of the present controversy arose were of a nature to call for the exer-
i part of Her Britannic Majesty's Government, of all possible solicitude for
»nce of the rights and duties involved in the proclamation of neutrality
ler M^esty, on the i3th of May, 1861.'"

subject of the toleration of insurgent operations in England, |

iish feeling against the United States, Mr. Davis thus sum- ^

he discussion:
b Sclopis says, respecting this point :

ritish Government was fully informed that the Confederates had established

i a branch of their means of attack and defense against the United States.

ners representing the Government of Richmond were domiciled in London,

it themselves in communication with the English Government. Lord Bus-

seived these Confederate representatives in* an unofficial way. The first

»lace on the Uth of May, 1861 ; that is to say, three days before the Queen's I

on of neutrality, and four days before Mr. Adams arrived in London as the >|

the United States. And further, the English Government could not but f

great commercial houses were managing the interests of the Confederates |

ol, a town which, from that time, was very openly pronounced in favor of .

In Parliament itself opinions were before long openly expressed in favor '*

rgents. The Queen's ministers themselves did not disguise that, in their <

would be very difficult for the American Union to re-establish itself as be.

* It results from this, in my opinion, that the English Government foand
ng the first years of the war of secession, in the midst of circumstances
d not but have an influence, if not directly upon itself, at least, apon a part
ilation subject to the British Crown. No Government is safe against cer-
9 of public opinion, which it cannot master at its will. I am far from
bat the animus of the English Government was hostile to the Federal Gov- j

uring the war. Yet there were grave dangers for the United States in
ftin and her colonies which there were not direct means for averting. Eng-
$fore, should have fulfilled her duties as a neutral by the exercise of adili-
il to the gravity of the danger. * * * It cannot be denied that there
ents when its watchfulness seemed to fail and when feebleness in certain
>f the public service resulted in great detriment to the United States.'

oant d'Itajab& has not placed on record his opinion on this sab-
ess it can be gathered from a single passage in his remarks

Mis. 162— VOL. m 41 641

§ 402a.] NEUTRALITY. [CHAP. i

apoii the effect of a commission on an offending craiser, when he e
^ By seizing or detaining the vessel the neutral only prevents the
ligerent from deriving advantage from the frand committed withu
territory by the same belligerent; while, by not proceeding again
guilty vessel it exposes itself to having its good faith justly called in qm
by the other belligerent^

As to duty to detain an offending cruiser when it comes again wi
the neutral's jurisdiction, and effect of a commission upon such era
Mr. Davis made the following report :

^' It was maintained in the American case that, by the true const
tion of the second clause of the first rule of the treaty, when a v<
like the Florida, Alabama, Georgia, or Shenandoah, which has 1
especially adapted within a neutral port for the use of a belligerei
war, comes again within the neutral's jurisdiction, it is the duty oi
neutral to seize and detain it. This construction was denied by G
Britain. It was maintained in the British papers submitted to
tribunal that the obligation created b3' this clause refers only to
duty of preventing the original departure of the vessel, and that
fact that the vessel was, after the original departure from the nee
port, commissioned as a ship of war protects it against detention.

^< To this point we rejoined that a commission is no protection aga
seizure in such case, and does not operate to release the neatral 1
the obligation to detain the offender.

"The Viscount d'Itajub4 seemed to favor the American construct
He said : •

" 'According to the latter part of the first rule of Article VI of the Treaty of Wael
ton, the neutral is bound also to use due diligence to prevent the departure froi
jurisdiction of any vessel intended to cruise or carry on war as above [viz, sgaii
belligerent], such vessel having been specially adapted, in whole or in part, wi
its jurisdiction to warlike use. " • • If, then, a vessel built on neutral tetri
for the use of a belligerent, fraudulently and without the knowledge of the nea
comes again within the jurisdiction of the sovereign whose neutrality it hasviolt
it ought to be seized and detained.'

"Count Sclopis says, on this point:

"'It is on the nature of these special circumstances that the first rale laiddoi
Article VI of the Treaty of Washington specifically rests. The operation of that
would be illusory, if it could not be applied to vessels subsequently oommiaaio
The object in view is to prevent the construction, arming, and equipping of the tc
and to prevent her departure when there is sufficient reason to beUoTO that she i
tended to carry on war on behalf of one of the belligerents ; and when probability
become certainty, shall not the rule be applicable to the direct and palpable ct
quences which it originally was intended to prevent f '

"In the award the tribunal says that —

** 'The effects of a violation of neutrality committed by meana of the cooitne
equipment, and armament of a vessel are not done away with by any commi
which the Government of the belligerent power, benefited by the Tiolation of
trality, may afterwards have granted to that vessel ; and the ultimate step by n
the offense is completed cannot be admissible as a ground for the absolution c
offender, nor can the consummation of his fraud become the means of establishii
innocence. The privilege of extraterritoriality accorded to vesseU-of-war has
admitted into the law of nations, not as an absolute right, but solely as a prooe

642

CHAP. XXI.] RULES OP 1871 AND GENEVA TRIBUNAL. [§ 402a.

foaoded on thol>riiiciple8 of ooartesy and mntaal deference between different nations,
and therefore can never be appealed to for the protection of acts done in violation of
Deatrality.'

^4t will be observed that the tribanal, instead of adoptiug the recog-
nition by the Yiscoant d'ltajub&of a positive obligation on the part of
the neatral to detain the vessel, in the case supposed, limited itself to
expressing the opinion that, in such case, the neutral would have the
right to make such detention."

Mr. J. C. B. Davis* report.

The following subsequent review by Mr. J. O. B. Davis, in his Kotes
on Treaties, of the proceedings and rulings of the tribunal, derives
))ecQliar weight from the fact that he was agent for the United States at
Geneva :

"The Treaty of Washington of May 8, 1871, contains three rules re-
si^ecting the duties of neutrals in a maritime war.

" In the arbitration which took place at Geneva the main conten-
tions ou each side, and the decisions, so far as any were given, were as
follows :

'' I. The United States contended that the three rules were in force
before the treaty was made. Qreat Britain denied this, both in the
tieaty and in the papers submitted at Geneva. In the British counter-
case it was said, 'These rules go beyond any definition of neutral
<lQty which, up to that time, had been established by the law or general
practieo of nations.' The tribunal did not notice this point ; but Mr.
Gladstone, in the House of Commons, on the 26th day of May, 1873,
said with respect to it, 'Were they, as regards us, an ex post facto lawt
I say tbey were not. We deemed that they formed part of the inter-
iiatioDul law at the time the claims arose.'

"11. The United States contended that the Government of Great
Britain, by its indiscreet haste in counseling the Queen's proclamation
^cognizing the insurgents as belligerents, by its preconcerted joint ac-
tion with France respecting the declarations of the Congress of Paris,
by its refusal to take steps for the amendment of its neutrality laws, by
its refraining for so long a time from seizing the rams at Liverpool, by
its conduct in the affair of the Trent, and by its approval of the course
of its colonial officers at various times — and that the individual members
of the Government, by their open and frequent expressions of sympathy
^itb the insurgents, and of desires for their success — ^had exhibited an
unfriendly feeling, which might affect their own course, and could not
bot affect the action of their subordinates; and that all this was a want
of the 'due diligence' in the observance of neutral duties which is re-
<inired at once by the treaty and by international law. They also con-
tended that such facts, when proved, imbued with the character of cul-
pable negligence many acts of subordinates in the British service for
which, otherwise, the Government might not be held responsible; as, for
instance, acts of the collector of customs at Liverpool respecting the
Florida and the Alabama; acts of the authorities at Kassau respecting
the arming of the Florida at Green Cay, and subsequently respecting
her sapplies of coal ; acts of the authorities at Bermuda respecting the
Fioritia, and acts of the authorities at Melbourne respecting the Shen-
andoah. They further contended that there were many such acts of
subordinates which, taken individually and by themselves, would not
form a just basis for holding culpable a Government which was honestly
and with vigilance striving to perform its duty as a neutral, but which,

643

§ 402a.] NEUTRALITY. [CHAP. XXL

taken in connection with each other, and with the proofs of animas
which were offered, estalished culpability in the Government itself.

'^The mode of stating the contentions on each side in these proceed-
ings was peculiar. The two parties were by the treaty required to de-
posit th^ir cases simultaneously; also in like manner their couuter-
cases (each of which was to be a reply to the case of the other) aud
their arguments on the cases, counter cases, and evidence. Wben,
therefore, the theory of the attack in the case of the United States wa«^
developed, the theory of the defense in the case of Great Britain wsis
developed simultaneously. In respect of the necessity of bringiog home
to the Government itself the acts of the subordinates, it was identical
in theory with the case of the United States. It said : 'A charge of iu-
jnrious negligence on the part of a sovereign Government, in the eier*
cise of any of the powers of sovereignty, needs to be sustained on stronjr
and solid grounds. Every sovereign Government claims the right to be
independent of external scrutiny or interference in its exercise of these
powers; and the general assumption that they are exercised with good
faith and reasonable care, and that laws are fairly and properly admin-
istered— an assumption without which peace and friendly interconrse
could not exist among nations — ought to subsist until it has been dis-
placed by proof to the contrary. It is not enough to suggest or prove
that a Government, in the exercise of a reasonable judgment on some
question of fact or law, and using the means of information at its com-
mand, has formed and acted on an opinion from which another Govern-
ment dissents or can induce an arbitrator to dissent. Still less is it
sufficient to show that a judgment pronounced by a court of competent
jurisdiction, and acted upon by the Executive, was tainted with error.
An administrative act founded on error, or an erroneous judgment of a
court, may, indeed, under some circumstances, found a claim to com-
pensation on behalf of a person or Government injured by the act or
judgment. But a charge of negligence brought against a GroverumeDt
cannot be supported on such grounds. !Nor is it enough to suggest or
prove some defect of judgment or penetration, or somewhat less than
the utmost possible promptitude and celerity of action, on the part of
an officer of the Government in the execution of his official duties. To
found on this alone a claim to compensation, as for a breach of interoa-
tional duty, would be to exact in international affairs a perfection of
administration which few Governments or none attain in fact, orcoald
reasonably hope to attain, in their domestic concerns; it would set op
an impracticable, and therefore an unjust and fallacious, standard,
would give occasion to incessant and unreasonable complaints, and
render the situation of neutrals intolerable. Nor, again, is a nation to
be held responsible for a delay or omission occasioned by mere accident}
and not by the want of reasonable foresight or care. Lastly, it is not
sufficient to show that an act has been done which it was the daty of
the Government to endeavor to prevent. It is necessary to allege and
to prove that there has been a failure to use, for the prevention of an
act which the Government was bound to endeavor to prevent, sacb
care as Governments ordinarily employ in their domestic conceru^t
and may reasonably be expected to exert in matters of intematioual
interest and obligation. These considerations apply with especial
force to nations which are in the enjoyment of free institutions, and iu
which the Government is bound to obey, and cannot dispense with?
the laws.'

*^I1I. It was maintained in the American case that the diligentt'Oi
the neutral should ^be proportioned to the magnitude of the sobjectr

644

LP. XXI.] RULES OF 1871 AND GENEVA TRIBUNAL. [§ 402ai

[ to the dignity and strength of the power which is to exercise it'
158), and that it should be ' gauged by the character and magui-
e of the matter which it may affect, by the relative condition of the
ties, by the ability of the party incurring the liability to exercise
diligence required by the exigencies of the case, aud by the extent
the injury which may follow negligence' (p. 162).
On the other side it was said, ' Her Majesty's Government knows
Qo distinction between more dignified and less dignified powers; it
ards all sovereign states as enjoying equal rights, and equally sub-
; to all ordinary international obligations ; and it is firmly persuaded
t there is no state in Europe or America which would be willing to
ID or accept any immunity in this respect, on the ground of its in-
ority to others in extent, military force, or population.' ' Due dili-
ice on the part of a sovereign Government signifies that measure of
B which the Government is under an international obligatiou to use
a given purpose. This measure, where it has not been defined by
irnational usage or agreement, is to be deduced from the nature of
obligation itself, and from those considerations of justice, equity,
[general expediency on which the law of nations is founded. The
isore of care which a Government is bound to use in order to pre-
t within its jurisdiction certain classes of acts, from which harm
[bt accrue to foreign states or their citizens, must always (unless
cifically determined by usage or agreement) be depeudent, more or
s on the surrounding circumstances, and cannot be defined with
dmn in the form of a general rule. It would commonly, however,
lureasonable and impracticable to require that it should exceed that
ch the Governments of civilized states are accustomed to employ in
ters concerning their own security or that of their own citizens.'
tribunal, in its award, said, < the due diligence referred to in the
and third of t^e said rules ought to be exercised by neutral Gov-
lents in exact proportion to the risks to which either of the bellig-
s may be exposed, from a failure to fulfill t4ie obligations of neu-
yon their part; and the circumstances out of which the facts
tiating the subject-matter of the present controversy arose were of
}fe to call for the exercise on the part of Her Britannic Majesty's

iment of all possible solicitude for the observance of the rights
ties involved in the proclamation of neutrality issued by Her
}f on the 13th day of May, 1861.' • • •
ut was maintained in the American case that the liability of Great
jfihonld be measured by the rules of international law, and that
.not be escaped by reason of any alleged deficiencies in any in-
fgislation. The award says the Government of Her Britannic
pannot justify itself for a failure in due diligence on the insufii-
if the legal means of action which it possessed.'
le statement in topic VI, as given by Mr. Davis, is here omitted,
tven substantially supra^ § 369.]

Iianner in which the United States had performed their duties

ral was made the subject of extended comment by both sides

iroceedings. The United States were arraigned in the case of

^in : in the British counter-case ; in the British argument ;

mdell Palmer's supplemental argument. In their counter-

jnet the allegations of Great Britain and they attached to it

historical documents in support of their denial ; and their

tcussed the subject at length in the argument."

C. B. Davis, Notes, d&c.

64o

§ 402a.] NEUTRALITY. [CHAP. XXL

" The two parties were agreed that the rule should not be presented to
foreign powers for their acceptance without an explanation which would
prevent such a conclusion [unduly averse to belligerents], and which
would restrain their operation to those acts which are done for^Jhe serv-
ice of a vessel cruising or carrying on war, or intending to cruise or carry
on war against another belligerent, and that they should not extend to
cases where military supplies or arms are exported for the use of a bel-
ligerent power from neutral ports or waters in the ordinary coarse of
commerce. To formalize a new clause in a manner acceptable to Eng-
land and America had not been practicable before the intermptiou of
the correspondence in 1872.

" It was not resumed till June, 1873, after the diflQculties of agree-
ment had been increased by the exaggerated construction given by the
arbitrators to the terms of the rules. ^The due diligence,' they say,
* referred to in the first and third of the said rules, ought to be eier-
cised by neutral Governments in exact proportion to the risks to which
either of the belligerents may be exposed, from a failure to fulfill the
obligations of neutrality on their part;' and that *the circumstances
out of which the facts constituting the subject-matter of the present
controversy arose were of a nature to call for the exercise, on the part
of Her Britannic Majesty's Government, of all possible solicitode for
the observance of the rights and duties involved in the proclamation of
neutrality issued by Her Majesty on the 31st May, 1861.'

*'A dispatch of Earl Granville, alluding to the proposition of Mr.
Fish to submit the three rules to the maritime powers, refers to the
embarrassments which resulted from the presentation to the coramis-
sion of the indirect claims, and to the difficult position in which the
representatives of England and of the United States would be placed
if they submitted to other states a series of rulings as to the meaning
of which they entirely differed. Earl Granville furthermore insisted
that, while the English Government is not at all disposed, as it appears
especially from the debates in Parliament, to accept all the decisions of
the tribunal at Geneva, the presentation of the three rules to 'the great
powers' would probably be considered as an aeceptance of its interpre-
tation of them, and inevitably induce the rejection of the three rules by
all these powers.

*'The President, in pursuance of their resolution of June 3, 1878, sub-
mitted to the Senate, January 13, 1879, the correspondence between
the Governments of the United States and Great Britain in rejrard to
inviting other maritime powers to accede to the three rules. The l^i^^
note, which was from Mr. Fish to Sir Edward Thornton, bears djite
September 18, 187G. The correspondence clearly establishes that there
was no disposition on the part of the two powers, least so on the p nrof
Great Britain, to make the submission ; and from the subsequent .silence
we are to infer that the three rules are to be deemed limited in tlieir
operation to the single matter of the Alabama claims, and as \vitb-
drawn from any proi)osed reform of the law of nations. It may be
added that there was a conviction on the part of both Governmeuts
that they could not receive the assent of a single state. Austria and
Germany had early given instructions to that effect. (Paihanientary
Papers, 1874; Congressional Documents : Senate Ex. Doc. 26, 4oth Cong.^
3d sess., 1879.)"

Mr. W. B. Lawrence, note to Wliart. Crim. Law (9th ed.) J 1908.

" Considerable difference of opinion prevails among jurists as to the
effect which the decision of the arbitrators [of the Geneva tribunal)

C46

!HAP. XXI.] RULES OF 1871 AND GENEVA TRIBUNAL. [§ 402a.

as made on the general principles of international law. It should be
Bmembered that Austria, Holland, Germany, Eussia, Spain, and other
bates were not represented at the conference, and both in Great Britain
ud on the continent the better opinion seems to be that oppressive and
npractic&ble obligations, hitherto unknown to international law, would
e imposed on neutral nations if the principles set forth as the basis of
\ie award, and the interpretation placed on the three rules of the sixth
rticle of the above treaty by the majority of the arbitrators, were ac-
eded to in future cases. In reply to Mr. Hardy, on March 21, 1873,
ir. Gladstone, as prime minister, stated in the House of Commons that
Q bringing these rules to the knowledge of other maritime powers, and
nviting them to accede to the same, ' you have a right to expect that
re should take care that our recommendation of the three rules does
lot carry with it, in whole or in part, in substance or even in shadow,
0 far as we (the British Government) are concerned, the recitals of the
arbitrators as being of any authority in this matter.'
^^ Farther, some considerable correspondence passed between the
3riti8li Government and the Government of the United States during
be years 1871-74, with respect to communicating to other maritime
Jovernments the above rules, but it was not found possible to draft a
lote which could meet the respective views of the two Governments.''

Note by Sir S. Baker in 2 Ualleck's Int. Law (Baker's ed.), 169.

'* Until a state had p]aced itself under a ruler armed with the great-
est practicable amount of executive power, and free from every consti-
utional check whatever, it could not be said to have done all that was
Kwsiblein order to insure the prompt arrest and the speedy coudemna-
iou and punishment of individuals who had broken, or who seemed
itely to break, the requirements of international law as to not injuring
oreign nations. Such a conclusion is really a reductio ad ahsMrdum,
fbicb demonstrates the unsoundness of the dogma virtually announced
^y four of the Geneva arbitrators — the doctrine that in inquiring
^betber a state is or is not chargeable with culpable fault or negligence
oruot having prevented certain acts of individuals, no regard what-
'^er is to be paid to the system of criminal process which, and wbicl^
'lone, is recognized and permitted by the fundamental institutions of
hat state."

Creasy's Int. Law, 335.

"It was an object of the Treaty of Washington to concert a code of
Q'es on the former subject which should be binding Lenceforward on
>otb the contracting parties, nud should be recommended by tliem to all
^^ibzed states for general adoption, but, unfortunately, when the arbi-
rators under that treaty came to api)ly ' the three rules' of that treaty,
twas found that the arbitrators were not all of accord as to the proper
^terpretation to be given to them, and ' the three rules ' having served
heir purpose for the settlement of a passing dispute, have been allowed
^remain a dead letter as regards their contemplated incorporation into
he general law of nations. But one thing has resulted from the adop-
Joiiof those rules for the purpose of deciding amicably a controversy
*etween Great Britain and the United States — that both those powers
are placed on record before an international tribunal their conviction
liat ships which are capable of being eujployed in the military or naval
Bnice of a belligerent power have jieculiar qualities which distinguish
lem from other chattels which are suitable for warlike purposes, and

G47

§ 402a.] NEUTRALITY. [CHAP. XIL

that the circumstance of their being private property is of no weight as
regards the responsibility of a neutral power to prevent their equipment
and their dispatch from its ports if it wishes to maintain good faith.
The members of the Institute of International Law, in their spsion at
Geneva in 1874, took * the three rules ' of the Treaty of Washington into
their consideration, and pronounced an opinion that 'the three rales,'
although in point of form they were open to objection, were in substance
the clear application of a recognized principle of the law of nations.
There is an apparent contradiction of principle between that opinion
and the proposal which has been favorably entertained by a majority
of the members of the institute in their session at The Hague, that the
right of capturing enemy's ships on the high seas, if they are private
property, should be denied to a belligerent. Besides, as the modem
law of nations has invested a ship, notwithstanding it is private prop-
erty, with a territorial character on the high seas in time of peace, there
seems no sound reason why a ship should be divested of its territorial
character in time of war on the ground of its being private properi^j
more particularly when the very circumstance of war invests it with
peculiar territorial qualities, which are not a fiction of law, but are of
substantial and indispensable service for the purposes of war, where
one of the belligerent parties is a maritime power."

TwiHH, Law of Nations, as to war (2d ed.), introd., 42.

Prof. E. Eobertson, in treating, in the Encyclopedia Britaunica, o^
international law, thus speaks of the "three rules": "These rule«»
which we believe to be substantially just, have been unduly discred'
ited in England, partly by the result of the arbitration, partly by the fee*
that they were from the point of view of English opinions ex post fact^
rules, and that the words defining liability (' due diligence') were vagix«
and open to unforeseen constructions; for example, the construction a<5*-
ually adopted by the Geneva tribunal that due diligence ought to t>^
exercised in proportion to the belligerent's risk of suffering from aay
failure of the neutral to fulfill his oblij^tions.''

*A majority of the members attending the Institute of Intemation^
Law, at its session in 1875 (Annuaire, 1877, 139), adoi/ted the followiof
resolution:

** L'£tat nentre qni vent rester en paix et en relations d'amiti^ ayec le» belli^-
rants, et Jouir des droits de la neutrality, a le devoir de s^abstenir de prendre aaean^
part & la guerre, au moyen de la prestation de secours militaires ii Vnu des bellig^
rants on & tons les deux, et de veiller ik ce que son territoire ne serve pascommeoentr*
d'organisations, ou comme point de depart aux expeditions hostiles contre Tan d'eiK
ou contre tous deux.

** En cons^uence, F^tat neutre ne pent mettre en aucune mani^re k la disposition
de Pun des £tats belli g^rants, ni lui vend re ses na vires de guerre, ou navires de trso^
ports militaires, comme aussi le materiel deses arsenaux ou de ses magasins militaires
dans le but de Paider & continuer la guerre. En outre, r£tat netiire est tena d«
veiller k ce que les autree personnes ne mettent des navires de gaerre k la dispositio*
d'aucuD desfitats bellig^rants, dans ses potts ou dans les parties de mer qui d^pendeD^
de sa juiidiction."

When the rules came before the institute, their approval was op-
posed by Professors Bernard and Lorimer and by Sir Travers Twia*-
They are also disapproved by Sir B. Phillimore, 3 Int. Law, 270.

648

CHAP. XXI.] RULES OF 1871 AND GENEVA TRIBUNAL. [§ 402a.

Of the three rules of the Treaty of Washington, Fiore, a distinguished
Italian publicist, thus speaks (Fiore droit int., 2d ed., 1886, translated
by Antoine, iii, § 1666) :
^^ It cannot beat this time said that all the powers have admitted
the rules thus accepted by England and the United States. These
rules may, nevertheless, be considered, not only as the expression of a
conventional law agreed on by two states, but as correct principles of
international law. They are, in e£fect, and in their essence, the appli-
cation of a general principle that states which are strangers to a war
must prevent on their own territories the organization of expeditions
or the preparing of armaments on account of either of the belligerents.''

But Fiore proceeds to extend neutral duties in this respect beyond
the three rules, by making the non-repression by neutral Governments
of the construction by individuals of vessds for a belligerent a breach
of neutrality.

In section 1556 Fiore proceeds to say that a neutral Government is
required '^par tons les moyens en son pouvoir, la construction dans ses
ports ou dans ses eaux territoriales de navires destines aux usages de
ia guerre, et la conclusion de contrats pour la construction de ces m^mes
bAtiments." For a Government to use ''all the means in its power" for
sach purposes would not only make neutrality more exhaustive than
^AT, but would require an ubiquitously despotic police.

Xn the same yolame are cited the following authorities bearing on the Alabama

^oir Reclamation de PAlabama; Calvo^ Revue de droit int., 1874, 453; Pradier
r^'cKl^r^, La Question de 1' Alabama, et le droit des gens ; Pierantoni, Gli arbitrati in-
leimazioDali, ed il trattado de Washington ; Rivier, L'Affaire de I'Alabama ; W. B.
Lj^^Teiice, Indirect Claims, Slc, ; Bluntschli, Opinion impartiale snr la qnestion de
V Alabama, Revue de droit int., 1870, 457.

On reviewing the '* three rules" in connection with the subsequent
proceedings of the commission, the following distinctions may be taken.
The** rules" themselves may be regarded as setting forth in terms stu-
diously general certain propositions which few publicists would disap-
prove But the treaty does not by itself give these rules the authority
of a code, and this for the following reasons :

(1) The " rules" were only to be binding as rules of international law
if accepted by the leading powers, which they have not been.

(2) They are not binding as permanent and absolute rules on England
^^^i\ the IJnited States : (a) because neither England nor the United
States have ever considered them to be so binding; and (6) because, by
tbe treaty that proposed them as temi)orary rules ot action for guid-
ance of a special and exceptional court, their permanent adoption is
dependent upon their communication to the great European powers,
^hich communication has never been made. This position is taken by
Mr. Fish in his letters to Sir Edward Thornton, of May 8 and September
^) 1876, as communicated by President Hayes in his message to the
Senate of January 13, 1879 ; and there is no dissent of the British Gov-
ernment recorded.

(3) Even if the *< rules" be binding, it must be remembered that on
fte topics discussed in the text they are couched in a vagueness which
no doubt was intentional, and which leaves open the main points of
dispute.

. It is to be observed, in addition, that while the weight of authority
^8 that the ** rules " themselves contain propositions which are generally
nnobjectionable, such is not the case with the decisions«of the mtyoritj

§ 402a.] NEUTRALITY. ' [CHAP.

of the arbitrators, who interpret the " rules " so as to impose on ne
trals duties not only on their face unreasonable, but so oppressive as
make neutrality a burden which no prudent nation, in cases of
maritime wars abroad, would accept.

In an exposition of the arbitration in the American Law Review,
237, it is said : '^ In limiting the rights of neutrals and augmenting tl
rights of belligerents, a grave injury is done to the cause of civilizatii
and humanity. • • • It seems to us that the tendencies of mode
theorists and the tendencies which have found expression in the decisi
at Geneva, are in the interests of absolutism, of enormously powerK>:
steites, of immense standing armies, of military power. • • • Tb^s
the United States should in a few years have become so drunk wS^t:]
military excitement and success as to labor for such a consummations i
simply marvelous."

<' It will be at once seen that these rules, though leading immediat^^lj
to an' award superficially favorable to the United States in the lax^^e
damages it gave, placed limitations on the rights of neutrals greater
even than those England had endeavored to impose during the Napole-
onic wars, and far greater than those which the United States had ever
previously been willing to concede. If such limitations are to be strictJj
applied, the position of a neutral, so it may be well argued, will be mucli
more perilous and more onerous, in case of war between maritime pow-
ers, than that of a belligerent. Our Government, to fulfill the obIfg»-
tious cast on it by these rules, would be obliged not only to have a
strong police at all its ports to i)revent contraband articles from going
out to a belligerent, but to have a powerful navy to scour the seas to
intercept vessels which might elude the home authorities and creep out
carrying such contraband aid. It must be recollected that not only onr
Atlantic and Pacific coasts, but our boundary to the north and to the
south contains innumerable points at which belligerents can repleuish
Iheir contraband stores, and that nothing but a standing army or navy
greater than those of any European power could [)revent such operations. i
Nor would this be the only difficulty. No foreign war could exist with-
out imposing upon the Governments of neutral states functions in the
repression of sympathy with either belligerent which no free Government
can exercise without straining its prerogatives to the utmost. It is not
strange, therefore, that in view of the hardness of these rules, they
should be regarded by European as well as by American publicists as
likely to be of only temporary obli;^ntion. * When we come to thesnb-
ject of neutrality,' says Professor Loriuier, of Edinburgh, a lea<Iing
member of tlie Institute of International Law (Institutes of tlu» La'^
of Nations, by James Lorirner, LL.D., Blackwood & Sons, 1883, P''^2)j
'we shall see but too much reason to believe that even the Treaty of
Washington of 1871, though professing to determine the relation be-
tween belligerents and neutrals permanently, was in reality a compro-
mise by which neutral rights were sacrificed to the extent which, on that
occasion, was requisite to avoid a fratricidal war. Before the award of
the arbiters who met at Geneva could be applied as a precedent, a "^^
treaty, embodying the famous ' three rules,' would require to be nego-
tiated; and it is extremely unlikely that either England, or any other
neutral power, would again agree, beforehand, io pay damages for thef^'
fiUment of the impossible engagements tchich these rules impose? This vi^^
is strengthened by the fact that the British members of the commissiott

650

•/

CHAP. XXI.] RULES OF 1871 AND GENEVA TRIBUNAL. [§ 402a.

by whom the Treaty of Washington was negotiated inserted in the treaty
the following memorandum : 'Her Majesty's Government cannot assent
to the foregoing roles as a statement of principles of international law,
which were in force at the time when the claims mentioned iu Article I
arose; hut Her Majesty's Government, in order to evince its desire of
strengthening the friendly relations between the two countries and of
making satisfactory provision for the future, agrees that in deciding the
question between the two countries arising out of those claims, the
arbitrators should assume that Her Majesty's Government had under-
taken to act upon the principles set forth in those rules.' It was pro-
posed, in the treaty of 1871, that the 'three rules' should be submitted
to the great powers of Europe. It soon became evident that neither
Great Britain nor the United States desired to make such a submission.
It nay be also added that there was a conviction on the part of both
Governments that they would not receive the assent of a single state.
Austria and Germany had early stated that their assent would not be
given. The * three rules,' therefore, were agreed to by the United
States only provisionally, and are not only in conflict with the principles
for which the United States contended down to the late civil war, but
give advantages to belligerents which even Great Britain regards as
excessive. These rules, repudiated as they have been by the contract-
ing powers, and rejected by all other powers, are to be regarded not
only as not forming part of the law of nations, but as not binding
either Great Britain or the United States. That the 'three rules' were
temporary and exceptional, and were to be only eflPective in case of rati-
fication by the great powers, which ratification was never given, is
Jnaintained by Mr. Fish in his letters to Sir E. Thornton, of May 8 and
September 18, 1876, communicated by Mr. Hayes in his message to the
Senate of January 13, 1879, The same position was taken in the House
of Commons in 1873 by Mr. Gladstone. Sir W. Harcourt, Mr. Disraeli,
and the attorney-general."

Whart. Com. Am. Law, $ 244.

" If Great Britain, with her comparatively few ports, failed to prevent
l^e use of these ports for the fitting out of Confederate cruisers, we can
l^aru what would be the doom of the United States in case of a Euro-
pean maritime war in which we occupied the ])Osition of neutrals. If
^ar, for instance, should exist between Great Britain and any leading
^ntiueutal power, it would be impossible to prevent such i)ower (e. /y.,
Russia, who has very limited capacity of naval armameiit), troui secur-
ing contraband aid in our ports. We obtained $lo,000,()00 under tiie
Geneva arbitration ; if the Geneva rules are to hold good, the payuiout
?^^tliis comparatively small sum would make us the insurers of any loss
^^jtish commerce might incur from cruisers whose coaling or who>e re-
l^^iriu our ports we could not prevent, unless by the use of exj)eclients
i^nbrersive of onr institutions. The strain })ut on the British Govern-
JJ^CDt by the attempts of the Confederate States in our late civil war to
^t out cruisers in British ]>orts is well told in Mr. Bullock's 'Secret
^^nnce of the Confederate States,' New York, 1884. In case of a Eui o-
p€au uaval war, we being neutrals, ingenuity in our ports by either bel-
y?erent, far less than was displayed by the Confederate agents in Brit-
^^h ports during the late civil war, would make it necessary, if the
%ee rules' be applied to us, either to line our shores with a standing
^^J of almost unlimited extent or to become belligerents ourselves.''

ma.

5 403.] NEUTRALITY. [CHAP.

Indirect claims, it was declared by the arbitrators, ^' did not const:!-
tute, on principles of international law applicable to such cases, goo<l
and sufficient foundation for an award of compensation or computation
of damages between nations. On the side of Qreat Britain the solution
was a practical one ; no damages were to be awarded for this class of
claims. On our side the solution was reached in the manner pointed
out by the treaty, viz, bj' the action of the court. On the suggestion
of the other side, this unofficial act was then formally entered as an
official judgment, in the following language:

<^ Count Sclopis, on behalf of all the arbitrators, then declared that
the said several claims for indirect losses mentioned in the statement
made by the agent of the United States on the 25th instant, and referred
to in the statement just made by the agent of Her Britannic Majesty,
are, and from henceforth will be,. wholly excluded from the considera-
tion of the tribunal, and directed the secretary to embody this declara-
tion in the protocol of this day's proceedings."

Report of Mr. J. C. B. DavU to Mr. Fish, Sept. 21, 1872.

As to this part of the rulings of the tribunal there has been no dissent.
Thus when the subject of the Geneva award is discussed by Oalvo, Droit
Int., vol. iii, 411 Jf., giving in this respect the opinion of continental pat^-
licists, he accepts the position that a belligerent cannot receive ftotxx
a neutral pecuniary damages for losses which his arms have suffeied
through such neutral's negligence in not preventing the other bellig-
erent's cruisers from getting to sea. He consequently sustains tls«
tribunal in rejecting the claim for indirect damages.

IV. MUNICIPAL STATUTES yOT EXTBA-TEBBITOBIAL.

§403.

As a general rule, municipal statutes expanding or contracting tli^
law of nations, have no extra-territorial effect.

Supra, $ 9 ; infra, App., VoL III, J 403.

*' The law of nations secures to neutrals unrestricted commerce witb
the belligerents, except in articles contraband of war, and trade witli
blockaded or besieged places. With these exceptions commerce is »*
free between neutrals and belligerbuts as if it were carried on solelj
between neutral nations; and it is difficult to conceive upon what prin-
ciple an exception can be made and the neutral deprived of the rigbts
secured in regard to the purchase of merchant vessels.

»' It is true a regulation of France has been referred to in support of
the doctrine avowed by the Imperial Government, but it is hardly neces-
sary to observe that a municipal law of that country can only affect
persons under its control, and can have no binding force beyond its
territorial limits. The parties who made the contract for the sale ao^
purchase of the ship St. Harlampy were not under the jurisdiction of
the municipal law of France ; on the contrary, they were both within
the jurisdiction of the Unit^ States as well as the property which
formed the subject of the transaction. The validity orinvalidity of th«
transaction can be determined only by the local or intematioual la^*
It was a contract authorized by the laws of this country and the law of

652

p. XXI.] MUNICIPAL STATUTES NOT EXTRA-TERRITORIAL. [§ 403.

DDs; and it was supposed to be aniversally conceded that sacb a
ract would be respected everywhere. Certainly no Government
pt that nnder v^hich the contract was made coald interpose to de-
Y or vary the obligations which its provisions impose if not contrary
le law of nations. This is the doctrine of the European publicists,
it is especially sustained by Hautefeuille, whose authority will, I
3t not, be recognized by the Emperor's Government. He says, * It is
>8sible to recognize such a right as that claimed by the regulation
ranee.' ' Commerce,' he adds, ' is tree between the neutral and bel-
nent nations ; this liberty is unlimited except [by] the two restrictions
tive to contraband of war, and places besieged, blockaded, or iu-
«d ; it extends to all kinds of provisions, merchandise, and movable
!Ct8 without exception. Pacific nations can then, when t)iey judge
3er, purchase the merchant ships of one of the parties engaged in
:ilities, without the other party having the right to complain, with-
above all, that it should have power to censure, to annul these
a, to consider and treat as an enemy, a ship really neutral and reg-
iy recognized by the neutral Government as belonging to its sub-
8. To declare null and without obligation a contract, it is indis-
sable that the legislator should have jurisdiction over the contracting
ties. It is then necessary, in order that such a thing should take
2e, to suppose that the belligerent possesses the right of jurisdiction
r neutral nations. That is impossible ; the pretension of the bellig-
ats is an abuse of force, an attempt against the independence of pa-
c nations, and consequently a violation of the duties imposed by
Ine law upon nations at war.'

' However long may be the period during which this doctrine has
med part of the municipal code of France, it is manifestly not in
fmony with her maritime i)olicy, and it is confidently believed by this
'vernment that France will not assert it not only against the practice
other nations but against the authority of her most enlightened
iters on public law."

Mr. Marcy, Sec. of State, to Mr. Mason, Feb. 19, 1856. MSS. Inst., France.

^* We hold that the international duty of the Queen's Government in
IB respect was above and independent of the municipal laws of Eug*
Kd. It was a sovereign duty attaching to Great Britain as a sover-
rn power. The municipal law was but a means of repressing or pun-
ling individual wrong-doers ; the law of nations was the true and
oper rule of duty for the Government. If the municipal laws were
fective, that was a domestic inconvenience, of concern only to the
^al Government, and for it to remedy or not by suitable legislation as
pleased. But no sovereign power can rightfully plead the defects of
own domestic penal statutes as justification or extenuation of an
^mational wrong to another sovereign power."

Mr. Fish, Sec. of State, to Mr. Motley, Sept. 25, 1869. MSS. Inst., Gr. Brit.

^ 403.] NEUTRALITY. [CHAP. XL

The undertaking of a belligerent to enlist troops of land or sea i
neutral state without the previous consent of the latter is a hostile s
tack on its national sovereignty. The act of Congress prohibiting
eign enlistments is a matter of domestic or municipal right as to wt^
foreign Governments have no right to inquire, the international offe^
being independent of the question of the existence of a prohibitory ^
of Congress.

7 Op., 367, Cnshing, 1855.

The measure of a neutral's obligations are to be found in the role^s <
international law ; and it cannot shelter itself by the allegation that it
own legislation imparts a laxer standard on its subjects.

4 Pap. Rel. Treat WMhington, 12.

^^ The neutrality statutes^ both of Great Britain and of the United States,
impose much severer restrictions in this respect on subjects than the lair
of nations imposes upon sovereigns. The history of legislation and of
public opinion in the United States on this topic is of peculiariuterest,
not onl3' as showing that our legislation imposing neutrality is move
stringent than the law of nations, but as marking the extent to whicii
public opinion is swayed to and fro by the varying necessities of epochs.
General Washington, in a message of December 3, 1793, said: *'Tbe
original arming and equipping of vessels in the ports of the United States
by any of the belligerent parties for military service^ offensive or defen-
sive, is deemed unlawful ; " and this, in condemning the intrusion of a
belligerent on neutral soil for the purpose of fitting out belligerent ar-
maments, is unquestionably a rule of the law of nations. There is
nothing in this remarkable message, so often appealed to at home and
abroad as giving the true tests of international neutrality, which de-
clares that the fitting out of an armed vessel intended to be delivered
to a belligerent in his own port is forbidden by the law of nations. The
neutrality act adopted by Congress for the purpose, not of defining the
law of nations but of prescrilvng the duty of citizens to the National
Government, undoubtedly made it penal to fit out and arm vessels with
intent that they should be employed in the belligerent service of a for-
eign state; but this statute, passed from excessive caution, for tbepof*
pose of keeping the new Republic, as far as possible, out of the temp^
tuous war then raging in Europe, was never regarded, as we haveseeOT
as determining the duties of the United States when a neutral to foreign
belligerents. • • • Our neutrality statutes are again accepted with the

interpretation put on them in the Santissima Trinidad, the qualification
being acknowledged that they prescribe the duty of our citizens to the
United States, not that of the United States to foreign Oovemments;
and even were this not the case, the ruling in that case, that by thelA^
of nations a neutral is not bound to prevent its subjects from selling
armed vessels to a belligerent, has never been judicially modified ; ^nd
the Federal Government has again accepted this view even as deter-
mining the scope of our own statutes. We have, as a country, exhaust-
less mines of iron and coal ; and though we may not be able to buiW
steamships as cheaply as they are built in Great Britain, yet the differ*
ence is but slight, and there may be many reasons, based in part on
patent rights to specific munitions of war, in part on political relations?
which might lead a foreign nation to purchase ships in our doc^
yards rather than in those of Glasgow or Liverpool or Belfast. ^^

654

IP. XXl] MUNICIPAL STATUTES NOT EXTRA-TERBITOBIAL. [§ 403.

astry is ooe of importance ; it is one of the prime factors of national
rer ; it enables a powerful nation to stand by herself as against the
id, and to protect her ports, no matter what may be the invader's
al strength. Now it so happens that since the civil war we have
Q constantly supplying with armed ships foreign nations in a state
elligerency either actaal or prospective. There has not been a single
ual intimation that sales of this kind are illegal. Were a prosecu-
I to be ordered against parties making such sales, there can be no
stion that the ruling in the Santissima Trinidad would be repeated,

the defendants in such cases acquitted. And even were it other-
e, and the sales were to be held illegal by our municipal law, that
Qicipal law would not be held to modify the law of nations, and make

Government liable to the offended belligerent for its omission to istop
h sales. No doubt to carelessly or knowingly permit an armed cruiser
)e manned in a neutral port, and sent out from such port to prey on
iigerent commerce, or to form part of a belligerent navy, is a breach
leutrality. • • • But for a neutral to sell a ship, even an iron-clad,
^belligerent, such ship not being manned and armed in a neutral port
10 more a breach of neutrality than for a neutral to permit able-bodied
n to emigrate to a belligerent state."

Whart. Com. Am. Law, $ 241.

•

^ It by no means follows that because, by the law of nations, a neu-
I state is bound to a certain line of conduct towards belligerents, its
>jects are bound by the same line of conduct, and are responsible to
>ir state for any such acts of participation in foreign wars, as by the
r of nations it is bound to prevent. A nation, on the one side, may
S 'I do not choose to suppress these acts of participation, or I can-
^ suppress them, but I will take on myself the consequences, and will
ke reiaration.' Such was the position of President Washington be-
e the passage of the neutrality statute. Prosecutions against the
Anders were attempted at common law, and although as we have seen,
^as at first held that the Federal courts had commoulaw jurisdiction
offenses against the law of nations, yet the conclusion was soon
iched that without a statute such offenses could not be judicially
«hed. This conclusion was communicated to the English minister,
• Hammond, with the announcement that the United States Oovern-
ut would nevertheless hold itself responsible to foreign nations for
r infractions of its international obligations, though it might not be
ie to proceed penally against its own citizens for such infractions,
ipra, § d95a, ff.) The same attitude was assumed by Great Britain in
I Alabama controversy. British legislation might be defective, it
s admitted, so far as concerned the power to punish British subjects
breaches of neutrality, but this in no way limited the obligation of
British Government to make good to the United States losses in-
Ted through such misconduct. And, on the other hand, a state may
)08e by statute on its subjects an abstention much more strict than
t which is imposed by international law on itself. If so, its subjects
bound by the statute, and may be convicted of offenses, which, for
Qicipal purposes, it deems breaches of neutrality, though the litigated
s would not be breaches of neutrality by the law of nations.'^

Wbart. Crim. Law (9th ed.), $ 1901.

The nation is primarily responsible to other nations for certain deeds
m done by herself or by ahy of her subjects. This responsibility has

655

f 404.] KEUTRALITY. [CHAP. XXI.

been long since recognized and fixed by international law. In order
that she may more promptly and efficiently perform the daties growing
out of this responsibility, she passes her neutrality act. Bat it is a mat-
ter wholly of domestic concern. Her liability to her sister nations is not
changed on^ whit thereby ; to them it is immaterial what branch of the
Government is charged with this performance or what method is taken
to secure it. If she relies on the sufficiency of her law she does it at
her own risk, not at the risk of another people. If the law proves in-
sufficient it is her misfortune, it is the result of her own faulty judg-
ment, and she remains equally liable to make reparation for the wrong
which her law has failed to prevent. It is no answer for her^ when
called upon to make satisfaction for the wrong, to reply that she is very
sorry but must really be pardoned, because her neutrality act was inef-
ficient in the case. What if it were f No one save her own statesmen
is responsible for the sufficiency of her neutrality act It was her own
creation, to suit her own requirements, and for her own sole conven-
ience. The other nation does not seek to hold her under this; she is not
coming into her courts as a common litigant to abide by the construc-
tion of one of her domestic laws. So far as the injured nation is coo-
cerned, the other may pass or revoke such statutes, regard or disregard
them at her pleasure. But under the general law of nations, accoi^itig
to the well*known principles of the international law of the civilized
world, the injury must be answered for. II is out of this <x>de that tbe
liability springs, and according to this it must be met. The defects
then, in the English statute could work no acquittal of England in tbe
case of the Alexandra or in any similar case. We hold her to answer
under the law of nations. She may deal with her own atatute as she
will, and make it efficient or a nullity as she chooses, but her optica to
do the latter can in no degree affect the relations which exist betweei^
herself and the United States as civilized nations."

North Am. Rev., Oct., 1866, 493.

V. PERSONS VIOLATING MUNICIPAL STATUIE MAY BE PBOCESDBD

AGAINST MUNICIPALLY.

§404.

[is principle was distinctively applied in trials, during President
hington's administration, for breaches of neutrality by enlistiiil? in,

This
Washingtoj
or aiding in fitting out, foreign belligerent cruisers.

See Henfield's case, Whart. St. Tr., 49; Villato's case, iWd., 185; WUli»i«^»
case, ibid,, 652.

Under our neutrality statute either to fit out or to arm is indii

U. 8. V. Guinet, 2 DaU., 321 ; Whart. St. Tr., 93; U. 8. v, Qainoy, 6 Pet, 445.

Acts of hostility committed by American citizens against such as «tt
in amity with us, being in violation of a treaty and against the pQ^^
peace, are offenses against the United States when committed within
the territory or jurisdiction thereof, and as such are punishable by in-
dictment in the district or circuit courts. The high seas being within
the jurisdiction of the district and circuit courts, such an offense com-
mitted thereon, is cognizable by said courts. Where such an offense

656

•CHAP. XXI.] PERSONAL LIABILITY OV OFFENDERS. [§ 404.

is committed out of the jarisdiction of the IJuited States the offenders
must be dealt with abroad, and, after proclamation by the President,
-Tvill have forfeited all protection from the American Government.

I Op., 57, Bradford, 17S5.

It is a misdemeanor at common law to plot and combine to disturb
the peace and tranquillity of the United States and to draw them into
•a war with a foreign nation.

1 Op., 75, Lee, 1797. But see eonira, rulings noted in Whdrt. Grim. Law, $ 253.

There is no municipal law in the United States to prevent the organ-
ization of combinations to aid and abet rebellion in another country,
unless forcible acts be attempted.

8 Op., 21G, Gushing, 1856. See supra, $$390/.

The Government of the United States cannot undertake to punish
its own citizens for disposing in another country of contraband ar-
ticles in violation of the laws of such country. " Neither our own laws,
nor, as is believed, those of any foreign country, make provision for
the enforcement of the penal laws of another country, the general rule
being that the laws of every nation are competent to vindicate their
^wn authority.''

Mr. Glay, Sec. of State, to Mr. Obregon, Apr. 6, 1827. MSS. Notes, For. Leg.
See on this topic, Whart. Grim. Law, $$ 9171 ff. ] supra, $ 15.

Under the act of 1794, made perpetual by the act of 1800, was held
tlie trial of Smith and Ogden for being concerned in the expedition of
Miranda against the dominions of the King of Spain, in South America,
"^he defense proposed to establish that the expedition had been insti-
tuted with the concurrence, if not at the suggestion, of the Government
^ the United States, and for that purpose summoned as witnesses the
^J^etary of State, and other principal members of the Administration.

J^ese officers, in a communication to the court, expressed their inability
^0 atteud on account of public duties, but proposed that their testimony
should be taken by commission, to which the defendants refused to as-
^Dt, but asked for compulsory process, and that the case might be de-
ferred until their attendance. The court decided that their testimony
^oald be immaterial, inasmuch as the previous knowledge or approba-
tion of the President to the illegal acts of a citizen could afford him no
Jtistification for the breach of a constitutional law. The President's duty
^ faithfully to execute the laws, and he has no such dispensing power.
^Qt although the charge of the judge was strongly against the defend-
ants, and there was no question as to the law, the jury returned a verdict
^f not guilty. (Trial of Smith and Ogden, 237.)

. How far General Hamilton was implicated in Miranda's schemes there
^ now no evidence to determine. In a letterfrom Hamilton to Miranda,
^ated August 22, 1798 (8 Hamilton's Writings, by Lodge, 606), Hamil-
ton states, " The sentiments I entertain with regard to that object (the
l^bject ' as to which a gentleman was commissioned to consult with
^amilton) have been long since in your knowledge^ but I could personally
^ave no participation in it unless patronized by the Government of this
^,antry. It was my wish that matters had ripened for a co-operation,
^ti the course of this fall, on the part of this country. But this can now

S. Mis. 162— VOL. Ill 42 657

§404] NEUTRALITY. [CIlAI*. XXU

scarcely bo the case." He then foreshadows a joint attack by Great
Britain and the United States for the conqaest of Spanish America, of
which '^ good work ^ he declares that he ^' woald be happy in my official
station, to be an instrnment." He then tells Miranda that '^ yonr
presence here will, in this case, be extremely essential." Bnt Hamil-
ton's scheme was Government, not private, spoliation of Spain.

The existing law, according to the summary of it as given by Chan-
cellor Kent Hi Kent's Commentaries, 128), and adopted by Wheaton
(Lawrence's Wheaton, 729), declares it to be a misdemeanor for any
person within the jorisdiction of the United States to augment the force
of any armed vessel belonging to one foreign power at war with another
power with whom they are at peace ; or to hire or enlist troops or sea-
men for foreign military or naval service, or to be concerned in fitting
out any vessel to cruise or commit hostilities in foreign service against
a nation at peace with them ; and the vessel in the latter case is made
subject to forfeiture. The President is also authorized to employ force
to compel any foreig4 vessel to depart, which, by the law of nations or
treaties, ought not to remain within the United States, and to employ
generally the public force in enforcing the duties of neutrality prescribed
by law. (Rev. Stat., §5 lo33 Jf.)

It is to be noted that it is equally unlawful to fit out ships against aik
insurgent Government as it is to fit them out for the insurgent.

Merely furnishing to a belligerent, by a citizen of a neutral state, of
contraband of war, does not on principle make such citizen peDalJj
responsible for a breach of neutrality, or for the consequences which
ensue from the use by such belligerent of the articles furnished. The
reasons are as follows :

^^ (1) Between selling arms to a man, and an indictable participation io
an illegal act intended by the vendee with such arms, there is no neces-
sary causal relation. 'The miner, the manufacturer, and the mer-
chant,' as has already been said, 'may regard it not only as possible,
but probable, that their staples may be used for guilty purposes, bnt
neither miner, manufacturer, nor merchant becomes thereby penally
responsible.' ' To enable a gunshot wound to be inflicted, an almost
innumerable series of conditions is necessary. It is necessary that the
gun should be procured by the assailant. It is necessary that the p»
should have been made by the manufacturer. It is necessary that the
steel of the gun should have been i>roperly tempered ; that the boUet
should have been properly cast ; that the materials from which baUet,
tube, and trigger were made should have been dug from the mine and
duly fashioned in the factory. • • • AH these are necessary condi-
tions of the shooting, without which the shooting could not have taken
place. No one of them, however, is in the eye of the law the canse'
(2) To make the vendor of munitions of war indictable would make it
necessary to impose like penal responsibility on the manufacturer; and
if on the manufacturer, then on the producer of the raw material which
the manufacturer works up. In each case the thiug made or sold is one
of the necessities of war. In each case the producer or vendor knows
that the thing produced or sold will probably be used for this parpose-
Hence, in times of war, not merely would neutral sale of munitions ot
war become penal, but penal responsibility would be attached to the
production of any of the materials from which such weapons are manu-
factured, if such weapons afterward fell into the hands of a belligerent.
v3) Nor would this paralysis be limited to periods of war. A prudent

G58

CH-AP. XXI.] POLICY OP UNITED STATES. [§ 405.

GoTernment, long foreseeing a rupture, or preparing iu secret to sur-
prise an unprepared foe, might take an unfair advantage of its adver-
sary, were this permitted, by purchasing in advance of the attack all
munitions which neutral states might have in the market ; but on the
theory before us, a neutral state could not permit this without breach
of neutrality, since to permit such sales would be to give a peculiarly
uafah* advantage to the purchasing belligerent. Hence, if such sales
were indictable in time of war, they would d, fortiori be indictable in
time of peace. Why would a foreign nation, it might well be argued,
want in time of peace to buy Dahlgren guns, or ^mstroug guns, or
ironclads, unless to suddenly pounce down on an unprepared foe f No
munitions of war, therefore, could be sold in any country unless to its
own subjects, and for its own use j and countries which cannot produce
the iron or coal necessary for the manufacture of artillery would have
to do without artillery, if it be indictable for a neutral to furnish a bel-
ligerent, either present or prospective, with munitions of war. (4) To
establish a national police which could prevent the sale of such commo-
dities would impose a burden on neutral states not only intolerable,
bat incompatible with constitutional traditions. It might be possible
in aland locked province, such as Switzerland ; it might be even possible
in an island like Great Britain, and with a navy so powerful ; but in a
country as vast as the United States, and with an ocean frontier so
extended, it would be impossible to establish a system of adequate pre-
tention without employing naval and military armaments inconsistent
with our settled policy, and imposing on us a pecuniary burden far
^ater than any corresponding loss to belligerents. (5) The laissez
fdire rule may undoubtedly be pressed too far ; but when we say that
We will not prohibit the sale of fire-arms to our own citizens because they
fliaybe used for homicidal purposes, we cannot be called upon to inter-
vene to prevent their sale to citizens of other states, simply because
such citizens may use them in battle."

Whart. Crim.Law (9th ed.), $ 1003.

^I. POLICY OF THE UNITED STATES IS MAINTENANCE OF NEUTRAL

HIGHTS.

S405.

^^ The policy of the United States is to maintain neutral immunities for
ttie following reasons : (1) The probabilities of war are far less with us
t'ban with the great European states. From the nature of things,
Points of friction between the United States and foreign nations are
Comparatively few. We have an ocean between us and the great armed
^mps of the Old World ; and while there are innumerable questions
^ to which one European state may come into collision with another,
^he only points as to which we would be likely to come into collision
^th a European state are those concerned in the maintenance of neu-
tral rights. It was to' maintain such rights that we went to war in
1812; and, except during the abnormal and exceptional spasm of the
Ute civil war, our national life has heretofore been the life of a neu-
tral and a vindicator of neutral rights, and neutrality, when our sys-
tem took shape^ was arduous. The world was absorbed in the tremen-
dous contest between France, on the one side, and England, with her
allies, on the other. At times we were the only civilized power that re-
mained neutral. Threats and blandishments were used both by Franco

G50

§ 405.] NEUTRALITY. [CIIAP. X

and England to drive us from our position, bat tbat position was
only defined and defended, under General Washington's adniinistrati
in papers so able and just as to be the basis of all future proclamati
of neutrality, but was adhered to, though necessitating a war for
defense. Our international attitude is, from the nature of things, t
of neutrality ; and of the rights of neutrals we are, from the necesf
of the ease, the peculiar chamx>ions. (2) Although the richest coud
in the world, our traditions and temper are averse to large naval i
military establishments. (3) The idea of pacific settlement of dispu
international questions is one of growing power among us ; the hoi
of war has not been diminished by the experience of the civil w
there is no country in the world where love of order is so great, an^
which public peace is kept by an army and navy so'small ; it would
hard to convince the people of the United States that the immense s
exhausting armaments of the great European states are not in p
caused by the assigning of undue power to belligerents, and that <
of the best ways of inducing a gradual lessening of these armame
would be the reduction of these powers. By belligerents, and especia
by Great Britain when engaged in her great naval wars, have these p(
ers been defined in the interest of war; it is important that the definit
should be readjusted by neutrals in the interests of peace. (4) It
impossible to overcome the feeling that the sea^ like the air, should
free, and that no power, no matter how great its resources, should
permitted to dominate it, so as to enable it, in case of war, to ransa
all ships which may be met for the discovery of an enemy's gooc
Prizes will become more and more valuable as the wealth traversii
the ocean is multiplied ; and to sustain belligerent rights in the sen
they have been understood by Great Britain, is to place in the hands <
that nation, as possessing the most powerful navy in the world, almoi
unchecked control over this wealth. The position of the United Stat«
is that of the power which has more of its produce on the high sea
than has any other power, while it has of all great powers the smaller
navy ; and this position, being that of a nation which has few points t*
go to war about, is, from the nature of things, so far as concerns neu
tral rights, antagonistic to that of nations who, with far less wealth oi
the high seas, possess navies which would enable them, if this righ
were conceded to them, to overhaul the commerce on the great oceai
lanes of travel. (5) It is not right to offer such a premium to prepon
derance of naval strength as is offered by the theory of belligeieii<
rights as maintained in Great Britain. To allow a belligerent to seard
neutral ships, and to take out of them whatever a prize court of sacli
belligerent might consider enemy's goods, gives a virtual supremacv
to the power whose superiority in naval force enables it to sweep tii€
seas. If the right to seize an enemy's property in neutral ships is here
after to be claimed by Great Britain, the right of other nations to ol>
tain naval armaments abroad should be conceded. And to prevent the
United States, the only country besides Great Britain in which iron can
be manufactured so as to be used for steam cruisers, from supplpJ^p
other nations, when either at war with Great Britain, or when prep^^*
ing for such war, with iron to be used in naval warfare, is to make Great
Britain tyrant of the seas. Such a claim is as inconsistent with th^
wise and liberal policy of Great Britain in the present generation as »
is with the interests an^ self-respect of the other great states of the
civilized world."

Wbart. Com. Am. Law, $ 242.

GCO

C^LAP. XXI ] POLICY OF UNITED STATES. [§ 405.

QThe position of the United States as to neutral rights is thus criti-
cised in 1828, in the London Quarterly Beview:

^ ^ England, more than any other power, has experienced this frigid and
ex&cting temper on the part of the United States, ever since that pre-
cious Treaty of Ohent, which gave to them all that they asked, and much
more than they had any right to expect. JSTot contented with this, the
Republic has since put forth claims of the most unreasonable nature ;
an^, in the discussions that have taken place, evinced a litigious posi-
tion on points that can scarcely fail, sooner or later, to bring the two
nations into collision. We mean such points as Great Britain never can
concede, and which can have no other object, if persevered in, than to
serve as so many pretexts to join the enemy against us in any future
xvar, as she did in the last. • • •

"Her ideas of a legitimate blockade agree pretty nearly with our
own—that to constitute a legal blockade there must bo an efficient force
to prevent all ships from entering a blockaded port; that a public noti-
fication must be made; that no ship shall be subject to capture for first
attempting to pass the blockading force, but be warned ofT; but if, after
being so warned, she again attempts it, she shall be liable to capture.
Bat the American Government has launched a novel proposition of a
^ery singular nature — that belligerents should abstain from commis-
sioning privateers and from capturing private property at sea, which
is a pretty considerable enlargement of the principle that she has long
endeavored to establish, that the flag of a neutral vessel shall cover
all property on board, except contraband of war; for here, in order to
ascertain whether a vessel has on board articles contraband of war, it
is necessary to examine her; and this being admitted, is conceding the
whole question of the right of search. We perceive she has laid down
her new doctrine on this point in a treaty with some young Eepublic
on the American continent, which calls itself Guatemala; indeed, no
pains are spared to impregnate all the sister Eepublics of both Americas
^th the principles of her new code of maritime law, though some of
them have not a cock-boat. No matter; it affords the occasion of put-
ting on record American opinions on matters of public law, and the
line of policy she is anxious to establish. Her broad proposition is
this, that ^war gives the belligerent no natural right to take the prop-
erty of his enemy from the vessel of his friend,' a convenient doctrine
enongh, it must be admitted, for one who is ready to be the friend of
either or both belligerents as best suits his purpose."

Lond. Qaar. Bev., vol. 37, 286. Referred to in Mr. GaUatin to Edward Ev-
erett, Ang. 6, 1828. 2 Gallatin's Writings, 400. See supra^ $ 150.

It is irotthy of notice that most of the distinotive doctrines here attributed to
the United States are now adopted by Great Britain.

661

CHAPTER XXII.

SHIPS' PAPERS AND SEA-LETTEBS.

I. Vessels carrtino the flag of the United States cannot, in tike Of

PEACE, BE arrested ON THE HIGH SEAS, EXCEPT AT THE RISK OF THE FARTT
MAKING THE ARREST, $ 408.

II. Ships' papers certifying, under the authority of the United States,
that the vessel holding them is a vessel of the united states,
cannot be tested as to alleged fraudulency by foreign powers,
i'hb question of jheir validity is exclusively fojt the united
States, $ 409.
III. Vessels owned by citizens of the United States may carry the flag
OF the United States on the high seas, and are entitled to the pro-
tection OF THE United States Government, though from being

FOREIGN BUILT, OR FROM OTHER CAUSES, THEY ARE NOT AND CANNOT BE
REGISTERED AS VESSELS OF THE UNITED STATES, $ 410.

I. VESSELS CARBTINO TEE FLAG OF THE UNITED STATES CANNOT, IK
TIME OF PEACE, BE ABBESTED ON TEE EIGE SEAS, EXCEPT AT
TEE BISK OF TEE PABTY MAKING TEE ABBEST.

§40S.

It has been already seen (aupra^ § 327) that a national flag is prima
facie evidence, on the high seas, that the nationality of the ship cariy-
ing it corresponds to that of the flag. It is trae that when there is proba-
ble ground to believe that the flag is assumed for piratical x>urposes, this
will excuse the arrest and search of the vessel. But unless there be such
probable cause the vessel must be assumed by foreign cruisers to be en-
titled to the flag she flies.

n. ships;' papers certifying, under tee auteority of the

UNITED STATES, TEAT TEE VESSEL EOLDING TEEM IS A VESSEL
OF TEE UNITED STATES, CANNOT BE TESTED AS TO ALLEGED
FRA UD ULENCY B Y FOREIGN PO WERS, TEE Q UESTION OF TEEIR
VALIDITY IS EXCLUSIVELY FOR TEE UNITED STATES.

§400.

A certificate under the authority of the United States must be taken
by foreign powers as genuine, and can be impeached by them only by ap-
plication to the Government of the United States. This has been held
as to naturalization certificates (suproy § 174a); and the same principle,
as was held in the Virginius case {aupraj § 327), applies to papers certi-
fying, under the authority of the United States, that the vessel holding
them is a vessel of the United States. If such papers are fraudulent,

CC2

"CnAP. XXII.] RIQHT OP UNREGISTERED SHIP TO FLAG. [§ 410.

the parties forcing or wrongfally using them are liable to pauishment
in the United States; and the United States will not permit them to be
employed as a basis of a claim against foreign powers. Bi;t the United
States must be the sole judge of their validity, so far as concerns pro-
ceedings on the high seas. K'o foreign power can be permitted to de-
termine as to such validity. Supra, §§ 3"^ff.

in. VESSELS OWNED BY CITIZENS OF THE UNITED STATES 'MAY
CABBY THE FLAG OF THE UNITED STATES ON THE HIGH SEAS,
AND ABE ENTITLED TO THE PBOTECTION OF THE UNITED
STATES GOVEBNMENT, THOUGH FBOM BEING FOBEIGN BUILT
OB FBOM OTHEB CAUSES THEY ABE NOT AND CANNOT BE
BEGISTEBED AS VESSELS OF THE UNITED STATES.

§410.

The protection afforded to non-registered vessels owned by citizens
of the United States on the high seas is analogous to that given to per-
sons of foreign birth not naturalized, but domiciled in the United States.
We ixave statutes to the effect that a foreigner can only acquire citizen-
ship of the United States by naturalization, and we have treaties desig*
i^ating such naturalization as the only process by which native allegi-
ance can be divested and an adoptive allegiance acquired. Notwith-
standing these statutes, however, a person of foreign birth who acquires
^ domicil in the United States will be protected by the Government of
the United States in the enjoyment of all rights appertaining to domi-
5^1 (*ttpra, § 198 Jf.), unless limited by treaty. The principle is based on
^uternational law, which, as distinguished from municipal law, makes,
for international ptirposes, domicil the basis on which rest personal
statas, taxation, and succession of movables after death. {Ibid. See
Whart. Confl. of Laws, § 7, where this question is discussed at large.)
So it is with regard to ships at sea. As to them, municipal regula-
tions, unless incorporated in the law of nations, have no extraterri-
'ferial force. {Supra, § 9.) Ownership is the basis on which nationality
i^ts; ownership is evidenced by bill of sale and guaranteed by the
flag the ship carries ; foreign nations will not look into the question of
title, nor examine how far municipal laws have been complied with so
as to enable the ship for municipal purposes to carry the flag ; a certifi-
<5ate or passport, therefore, from the sovereign of the flag, or a certificate
from one of his consuls, that the vessel is owned by one of his citizens or
subjects, will be a sufficient assurance that the flag, for international pur-
poses, is rightfully carried. Sea-letters, as issued by the Government of
the United States, are in this view simply an assurance by the Govern-
oient issuing them, based on ownership, of protection on the high seas.
Municipally such letters have no effect. Internationally they merely
extend to the ship the protection which each sovereign, when not other-
wise bound by treaty, is authorized by international law to give the ships
of his subjects or citizens on the high seas. These ships are entitled
to no municipal privileges given by statute to registered vessels exclu-
fiiTely, just as a person of foreign birth, domiciled in the United States,
is not ordinarily entitled to vote unless naturalized. But jnst as such
persons, so domiciled, will be protected by the United States so far as
concerns their relations to foreign states, so non-registered sbips on the
high seas, owned by citizens of the United States, will be protected by
the Government of the United States so far as concerns their relations

§410.] ships' papers and sea-letters. [chap, xxir-

to foreign states. And what is said of sea-letters may be said, also, of
consular certificates of United States ownership.

^^The persons and property of our citizens are entitled to the protec-
tion of oar Oovernment in all places where they may lawfully go. N(^
laws forbid a merchant to buy, own, and use a foreign-built vessel. Sh^^
is then his lawful property, and entitled to the protection of his natiom
whenever he is lawfully using her.

^^The laws, indeed, for the encouragement of ship-building have giveik:
to home-built vessels the exclusive privilege of being registered and.
paying lighter duties. To this privilege, therefore, the foreign-builfc -
vessel, though owned at home, does not pretend. But the laws have
not said that they withdraw their protection from the foreign-built ves-
sel. To this protection, then, she retains her title, notwithstanding the
preference given to the home-built vessel as to duties. It would be-
hard, indeed, because the law has given one valuable right to home-
bmlt vessels, to infer that it had taken away all rights from thos^
foreign built.''

Opinion of Mr. Jefferson, May 3, 1793. 7 Jeff. Works, 624.

<^It being necessary in the present state of war among the principa^l
European powers that all ships and vessels belonging to citizens of th^ ^
United States should be furnished, as soon as possible, with sea-letter^s,
for their more perfect identification and security, you will find withSBQ
the inclosure ten copies of two several documents of that kind, signf==^
by the President of the United States, and countersigned by the Seci e-
tary of the Department of State, which have been received from th^^at
Department for the purpose of being transmitted to the several custoi=:D-
houses. One of each of these letters is to be delivered to every ship
vessel, being actually and honajlde the property of one or more citizens
the United States, after the captain shall have duly made oath to
effect, and according to the tenor of the certificate, printed under tl
which is in Dutch and English, the substance and purport of which oi
is comprised in the 10th, 11th, 12th, 13th, 14th, and 15th lines of the
printed certificate. To this the captain is to be duly sworn before soi
officer qualified to administer oaths. • * •

^< The certificate is then to be signed by the magistrate, and the pal
seal (or if he has no public seal, his private seal) is to be affixed,
blanks are to be filled ap both in the English and Dutch copies of
sea-letter by the collector, and in both the English and the Dal
copies of the certificate by the magistrate or judge. • • •

"You will acknowledge the receipt of all sea-letters you shall receS^ ^^
from time to time, and you will keep a record thereof, and of y^onr
disposition of them, showing the names of the vessels (with t\m^i^
masters and owners) for which they were issued, the i>orts of the Uni'f'^
States to which the vessels shall belong, the date at which you \9sm

664

CHAP. XXn.] RIGHT OP UNREGISTERED SHIP TO FLAG. [§ 410.

tli.cm, the officer before whom^the captain shall be sworn, the burdens
tonnage of the vessels, and the ladings on board of them.

^< Of these you will be pleased to make an abstract by way of return^
to the last day of every revenne quarter, and to transmit the same
to this office, with a note of the sea-letters received and issned during
sixch quarter, and of the quantity remaining on hand.

*< These documents being of great importance to the United States,.
not only as they regard the benefits to be derived from the state of
peace by the owners, navigators, and builders of ships, but also as they
affect the importation of our supplies, and the exportation of our pro-
duce, at x>cace charges, you will execute the business in relation to them
with proportionate circumspection and care.''

Mr. Hamilton, Sec. of Treasary, to Mr. Lamb, collector of castoms for l^ew
• York, May 13, 1793; cited in Slegbt v. Hartshorne, 2 Johns. N. Y., 535.

*4 send you the forms of the passports given here — the one in three
eolamns is that now used, the other having been soon discontinued.
It is determined that they shall be given in our own ports only, and to
serve but for one voyage. It has also been determined'that they shall
be given to all vessels bona fide owned by American citizens, wholly j.
whether built here or not. Our property, whether in the form of vessels^
<^rgoes, or anything else, has a right to pass the seas untouched by any
natioD, by the law of nations; and no one has a right to ask where a
vessel was built, but where is she owned! To the security which the
la\7 of nations gives to such vessels against all nations are added par-
ticular stipulations with three of the belligerent powers. Had it not
^^^«Q in our power to enlarge our national stock of shipping suddenly in
^e present exigency, a great proportion of our produce must have re-
gained on our hands for want of the means of transportation to market.
^t this time, indeed, a great proportion is in that predicament The most
^eorous measures will be taken to prevent any vessel not wholly and
^03ui fide owned by American citizens from obtaining our passports.
^t; is much our interest to prevent the competition of other nations from
^^ling from us the benefits we have a right to expect firom the neu-
^^^'ality of our flag : and I think we may be very sure that few, if any^
^"vll be fraudulently obtained within our ports."

Mr. JeffersoD, Sec. of State, to Mr. Morris, Jane 13, 1793. MSS. Inst., Ministers.

*< There is no authority inlaw warranting an American minister in
^hina ^ to grant sea-letters or any documents of a like character to
^^ireign vessels purchased by Americans residing in Ohina, designed to
^^^ used in the coasting trade of that country. '"

5Ir. Bachanan, See. of State, to Mr. Davis, Feh. 17, 1849. MSS. Inst., China.

^'The law of nations does not require a register or any other par-
ticular paper as expressive of the ship's national character. Laws de-
^ribing the kind of papers vessels must carry are considered as regn-
al

§ 410.] ships' papers and sea-letters. [cnAP. xx:

iations purely local and municipal, for jjprposes of public policy, aj
vary in different countries. As evidence that the vessel has change
owners, the bill of sale is required by the practice of maritime coun
and is generally satisfactory. Sir William Scott says : * A bill of ss
is the proper title to which the maritime courts of all countries won
look. It is the universal instrument of transfer of ships in the nsa^
of all maritime countries.'"

Mr. Marcy, Sec. of State, to Mr. Mason, Feb. 19, 1356. MSS. lost., France.

The Stonewall, a vessel owned in the United States, was sold and d
livered to the Japanese Government in American waters. She th<
became a Japanese vessel, and on her arriving at Japan, during tl
<5i vil war there raging, was out of the control of the officers of the Unit-
States, diplomatic or naval.

Mr. Seward, See. of State, to Mr. Valkenbnrgh, Apr. 30, 18C8. MSS. Inst., Japi

[The Consular Begulations] << stated that foreign-built vessels, pi
<2hased and wholly owned by citizens of the United States, whether pi
<5hased of belligerents or neutrals, during a war to which the United Stat
are not a party, or in peace, of foreign owners, are entitled to the prot<
tion and flag of the United States as the property ' of American citizen
The same instructions, however, require that the purchase should hsi
been in good fai th. The purpose of the authority to consuls in the matt
obviously was to enable citizens of the United States residing abro^
to buy foreign-built vessels for lawful trade. It was not intended
sanction a simulated purchase of such vessels, to be employed in ho8ti
operations against countries with which the United States are at peaci
Although, if the purchase in this instance was a bonu fide transactioo
it may be that a vessel so employed by the purchaser may not han
technically violated the neutrality law of the United States, still ber
-employment in the business in which those vessels engaged, while ^s-
ing the flag of this country, was contrary to the spirit of that act, and
at variance with the friendship then existing between the United States
and the King of the Two Sicilies. In point of fact, the examinatioo
which has been made has given rise to a doubt whether the alleged
purchase of the vessels referred to was a bona fide transaction ^^^ *
valuable consideration, or was only simulated in order that the fl^g
of the United States might be used to screen them from capture by the
Neapolitan navy on their way to and from Sicily. It cannot be doubt-
ful how far the authority or the countenance of this Qovernmeut sbouW
be employed in behalf of a claim if it should prove to be of this latter
oharacter.''

Mr. Fiali, Sec. of State, to Mr. Marsh, Jan. 29, 1877. MSS. Inst., Italy. See Mr-
Fish to Sir E. Thornton, Mar. 7, 1875. MSS. Inst.. Or. Brit ; For. Belj
1875.

« Mr. Gibbs' dispatch, No. 328, of the 7th ultimo, has been received-
It is accompanied by a copy of a circular from the Peruvian foreip*

CGC

<;H:AP. XXII.] EIGHT OF UNREGISTERED SHIP TO FLAG. [§410.

ofiB.ce, which had beea addressed to the legation, inquiring, 1st, as to the
requisites pursuant to law for a merchant vessel to be regarded as a
vessel of the United States } 2d, as to the conditions required by law
for a foreign vessel to display in good faith the flag of the United
States.

'' In view of Mr. Qibbs' dispatch, I have to state that his answer to
the first question appears to be in conformity to the provision of the
Revised Statutes, to which reference is made. His answer to the sec-
ond qaestion, in stating that there is no law which permits a foreign
vessel to use the flag of the United States, is also correct as far as it
goes. It might, however, have been added that there is no prohibition
of sach use by a foreign vessel beyond the jurisdiction of the United
States, or any penalty provided therefor. You are aware that the Gon-
4)al&r Regulations provide for the purchase of foreign vessels abroad
by citizens, and (§ 220) that if such purchase is in good faith it en-
titles the vessel to protection as the lawful property of a citizen of the
United States. The practice of making such purchases has advanta-
geously been pursued from the origin of this Oovemment. There may
have been instances in which it has been abused by collusion between
a consul and the parties to the sale. If, however, circumstances justify
on the part of that offlcer an opinion that the sale was honest, and that
the vessel has really become the property of a citizen, she may properly
% the flag of the owner's country as an indication of her ownership,
^nd SIS an emblem of his nationality."

Mr. E^arta, Sec. of State, to Mr. Chriatlancy, May 8, 1679. MSS. Inst., Pera;
For. Eel., 1879.

"It is notorious that a maritime war scarcely ever occurs when at
^east one of the belligerents does not seek to protect more or less of its
skipping by a neutral flag. In some instances this may honestly be
^one, but sales of vessels of belligerents to neutrals in apprehension of
^ar, or when hostilities may have actually broken out, are always more
^i less liable to suspicion, and such transactions justify the strictest
inquiry on the part of the belligerent who thereby may have been de-
frauded of his right to capture enemy's property. There are various
'Circumstances tending to show tbe good faith, or the reverse, of such
transfers. Prominent among these is the ability of the alleged pur-
<5haser to pay for his bargain.

"If, i>rior to the sale, he was notoriously incapable of making any
Such purchase, or if his previous pursuits did not fit him for tbe use of
the property, these and other obvious circumstances will tend to show
^ want of that good faith which alone can impart the rights of a neutral
^0 a vessel so acquired. I am sorry to say that instances are not want-
^^g where impecunious citizens of tbe United States have claimed to be
'the purchasers of foreign craft, and in some of them have actually had
the hardihood to apply to this Department for its interposition, when

CG7

§ 410.] ships' papers and sea-letters. [chap, xxi'*-

the terms of their contract may not, in their opinion, have been compile
with by the other party.

'< The acceptance of the pretended ownership of a foreign-bailt sh^^&l^
has undoubtedly proved profitable to many American citizens. Th:r ^^
was particularly the case during the great wars between maritime state^c- ^t
growing out of the French revolution, when the United States were a^^»t
peace. Ship-owners of this country, also, probably found a neutral fla^ -^^
a convenient cover for their property during our last war with Grea^^^t
Britain, and especially during the war of the rebellion in this countrj^^.
It is understood, however, that when these hostilities were brought t o

a close, Congress rejected the application of parties who asked to ha^^ e

those of their vessels renationalized which had been transferred und< ^r
the circumstances referred to.

<< It may have been the intention of Congress when it prescribed tbm. ^
national flag, that it should be used only by vessels of the United Staters,
as defined by law. No such intention, however, is expressed in aiM^
statute. As a citizen is not prohibited from purchasing and employiim ^
abroad a foreign-built ship, when such purchase is made in good faitSa,
there is no reason why he should not fly the flag of his country as
indication of ownership. This is frequently and constantly done,
cially in Chinese and other Eastern waters. It also appears from
Osborn's letter to you that there are American vessels of foreign baLl.<l
frequenting Chilian ports, which were bought years ago. The right
these vessels to display the flag of the United States will not be qui
tioned by this Department, and probably would be respected by a
court of admiralty.

'< It must be confessed that the regulations in authorizing a consul
authenticate and record a bill of sale of a foreign-built vessel, bestow
great power and responsibility on that officer in making him, in the
instance, at least, the sole judge of the good faith of the transactioi'*
There must have been, and may be, times and occasions when the tei0 P'
tation to abuse such a power may have been, and may be, irresistil>l^*
Although the validity of the transfer may, in the end, be judicially 3.0'
quired into, much harm might result from a simulated sale, before ^
final decision on the subject could be reached. Still the possible abca^^^
of power by a consul is not a sufficient reason for abrogating the pow^^y
especially if Congress should abstain fjrom forbidding the purchase av^d
use abroad of foreign-built ships by American citizens."

Samo to same, May 20, 1879 ; iHd.

"Section 4190 of the Bevised Statutes provides that *no sea-letter o^
other document certifying or proving any vessel to be the property" of
a citizen of the United States shall be issued except to vessels daJj
registered or enrolled and licensed as vessels of the United States, ^f"
to vessels tchich shall be toholly owned by citizens of the United States^ nod
furnished with or entitled to sea-letters or other custom hoase doca-

GGS

AP. XXII.] BIGHT OP UNREGISTERED SHIP TO FLAG. [§410.

ints.' This section clearly recognizes the right of American citizens
become the owners of foreign-built vessels.

-There is, however, no law which in express terms permits a foreign
ssel so owned by an American citizen to use the flag of the United
ites, nor, on the other hand, is there any prohibition of such uae by
breigu vessel beyond the jurisdiction of the United States, or any
lalty provided therefor. • • •

'It is known • • • that there are many vessels thus purchased
i owned by citizens of the United States now doing business on the
ists of Chili and Peru and other South American countries, and that
die there is no specific provision of law, either permissive or prohibi-
y on the subject of such vessels carrying the flag of the United
ites, it has been the long-established practice of these vessels to sail
der that flag. Under these circumstances the Department does not
il disposed at the present moment to issue any more or specific in-
ractions on the subject, and especially any that might in any way
id to jeopardize the interests of American citizens owning such prop.
by.''

Bir. EvartSy Sec. of State, to Mr. Osbonie, Jane 9, 1879. MSS. Inst., CliiU.

* Your dispatch No. 77, of November 6, 1879, ha^ been received. You
^ress in it the opinion that the time has arrived for a definite and
^ise declaration of the principles which are to govern the ministers
1 consuls of the United States, and more especially bur naval officers,
refereuce to the use of the American flag by foreign-built ships,
imed to have been purchased by American citizens from subjects or
zens of a belligerent power, during the existence of an actual war
:ween such belligerent Ooverument and another belligerent, towards
:h of which our Government maintains the position of a neutral. You
'' that if left to your own judgment, you would decide at once and
iihout reserve that any transfer made by citizens of one of the bellig-
tnts to a citizen of the United States, during the pehding war, so far
in being treated as prima facie evidence of good faith and validity,
)nld be treated 2^'^ prima facie fraudulent and void ; and that it should
so held, as well by our consuls as by our naval officers, until clear
i satisfactory evidence of the reality and good faith of the transfer
>uld be produced. You tben go on to say that your doubts in regard
the matter arise from the fact that you are informed that this De-
rtment has approved not only your views, but also those of the
nister of the United States in Santiago and our consul at Valparaiso,
lich you say are diametrically opposed to yours. You then proceed
state the views of these officers in a manner which, it is necessary to
y, is not justified by any dispatches which have been received from
em at this Department. You next refer to the case of the Itata, ex-
■essing your opinion that that vessel is about to assume again the
tnerican flag, and that a large part of the Chilian merchant marine

669

§ 410.] ships' papers and sea-letters. [chap. xxu.

will arrange itself, by^ means of the fraudulent transfers, under the same
colors. Yo» ask, therefore, for definite instructions in view of these
possibilities as to the duty of diplomatic representatives and consular
officers, as well as of officers of the United States Navy.

"This Department, in its instructions numbered 7, 11, and 23, to your
legation, and in instructions of similar purport, numbered 05 and 67, to
the legation in Santiago, has already defined the principles which should
guide you in the determination of these questions.

" In reply to your request for further instructions, this Department
can do little more than reiterate and reaffirm the leading principles
hitherto laid down, relying upon your discretion and judgment for their
proper application in matters of detail, as it is manifestly impossible to
frame an instruction which shall meet every possible incident as it may
arise.

" The right of Americans to buy foreign-built vessels and to carry on
commerce with them is clear and undoubted. Areference to paragraphs
220 and 221 of the Consular Eegulations will show how x)erfectly this
right is recognized and how clearly the exercise of it is defined. It has
existed, as stated in instruction to your legation, Ko. 11, of May8,erer
since the origin of this Government. The fact that it is possible for col-
lusion to takex)lace between consuls and American merchants in foreign
countries in connection with these transactions is not a sufficient reason
to invalidate a right which exists independently of statute law and which
is advantageous to the interests of American commerce and enterprise.
As a consequence and ac^unct of this right, the flying of the American
flag cannot be absolutely prohibited. As stated before, in the above-
mentioned instruction, if circumstances justify on the part of the consu-
lar officer an opinion that the sale was honest and that the vessel has
really become the property of a citizen, she may properly fly the flag^f
the owner's country, as an indication of such ownership and an emblem
of the owner's nationality.

" The duty of the consul in reference to these transactions is clearly
enough indicated in Article XVII of the Consular Regulations. Hew
forbidden bylaw to grant any marine document or certificate of owner-
ship, but he may properly make record of the bill of sale in his office,
authenticate its execution, and deliver to the purchaser a certificate to
that eflfect, and also certify that the owner is a citizen of the United
States. A considerable discretion and responsibility rests upon consuls
in regard to determining the good faith of such transactions. Thepi*
not to conclude, as a matter of course, that all such transactions are
genuine and honest. They are to take notice of any circumstances
which would indicate that the transfer is fraudulent, and in all such
cases it is their duty to refuse the certificates referred to. But,outlie
other hand, they are certainly not required to consider the mere fact oj
the transfer of- a foreign -built vessel to an American citizen as anc^i*
denco of bad faith. The presumption is rather on the other side, its >"

G70

AP. XXn.] RIGHT OF UNBEGISTEEED SHIP TC» FLAG. [§ 410.

transactions in civilized coantries. In the absence of any indications
frandya sale in the regular way, with the nsnal business formalities^
DO be regarded by the consul as made in good faith.
When such transactions have been perfected, and when a consul, thor-
^hlj satisfied of the good faith of the parties, has given his certificate
the transfer of a foreign-built vessel to an American citizen, and
vessel fumished with such consular certificate has been regularly
ared from the port where the consul referred to is stationed, and has
ne within the jurisdiction of another consular officer or diplomatic
iresentative of the United States, it should require very strong evi-
ice of fraud to induce the second consular officer to deny the Ameri-
1 character of the vessel, to refuse the regular and necessary clear-
se to enable the vessel to pursue its voyage, and still more, to insist
on such a vessel hauling down its flag. In cases where a consular
leer or diplomatic representative is thoroughly convinced that a vessel
s no right to an American certificate of sale, and consequently no
^ht to the use of the American colors, he will be justified in going to
e extent indicated ; but this discretionary power should be used with
e utmost caution and reserve.

^^ Vessels in these circumstances, of course, cannot claim the privi-
ges and immunities and the thorough protection which are accorded to
igularlyregistered American vessels plying between ports of the United
tates and those of foreign countries. The American owners domiciled
)road, engaging in business of this sort, take upon themselves all the
sks incident to such traffic. If they are seized by the war vessels of
leor the other belligerent and carried into courts of admiralty as prizes,
ley have no right to demand from the diplomatic officers of the United
^ates that they shall be accorded anything more than fair treatment
such courts ; that is to say, the fact that they are provided with con-
ilar certificates of American ownership secures for them only a pre>
tmption that such is the fact, and they are not necessarily for that
•ason entitled to demand from the legations of the United States
iything more than that protection afforded to every other species of
"operty belonging to American citizens domiciled in foreign countries.
"In the absence of any statutory provisions in regard to these impor-
nt and delicate matters, it seems to be the duty of the executive branch
' the Government to prevent as far as possible any damage or danger
American interests, and, in addition, to guard and cherish to the ex-
Dtof its power the right of neutrals to carry on honest commerce be-
reen nations engaged in hostilities, reducing to the least possible degree
e hindrances to neutral trade which inevitably arise from a state of

** You will, therefore, in all cases that may arise, keep these cousidera-
>ns constantly in sight, and apply them with that judgment and dis-
Jtion which have hitherto won the approval of the PresicIeDt. Your
tion and that of your predecessor, in the matter of the Itata, has

Oil

4 410.] ships' papers and sea-lbtters. [chap. xxn.

been commeQdod, because there seemed safficient reason to doubt the
regularity of the transfer, in virtue of which she ^«as displaying the
American flag. If, as you Intimate, that vessel .and her consorts are
now about to resume our flag, and other merchant vessels are preparing
to pursue the same course, it will be the duty of the consul, under the
'direction of the legation, in that country where these ships first display
American colors, to inquire strictly into the circumstances of the alleged
transfers, and refuse or grant clearances, according to the merits of each
particular case. This being done, it is obvious that the act of one Ameri-
can consul or minister should not be challenged or reversed by another
except upon the strongest proof of mistake or collusion."

Mr. Evarts, Sec. of State, to Mr. Cliristiancy, Dec. 26, 1879. MSS. Inst., Peru;
For. Rcl., 1879. Daplicated to Mr. Osborne. MSS. Inst., ChUi.

^'I regret to have to instruct you to bring to the attention of His
Imperial Majesty's Government a case of wrong inflicted by Eussian
subjects upon a vessel owned by an American citizen, and entitled
under our laws to fly the flag of the United States in foreign waters
and claim its protection there.

**The facts are briefly these:

^^In 1880 a small schooner of some 75 tons burden was built at a for-
eign shipyard, at Yokohama* Japan, and when completed was sold to
an American citizen, ]\Ir. Lorenz Heinrich Petersen, a German bj birth,
but naturalized as an American citizen at S<an Francisco, August 11,
1871. The schooner was sold under the name of the Diana, in virtue
of a regular bill of sale, executed and acknowledged before the United
States consul-general at Eanagawa on the 21st of April, 1881. la con-
formity with the United States law and with the regulations prescribed
by this Department, the consul-general certified the bill of sale, thns
evidencing the American ownership of the vessel, and giving her the
right to fly the United States flag.

"Four days after her sale to Mr. Petersen, and under the command
of that gentleman as captain, the Diana sailed from Yokohama under
the American flag, on the 25th of April, 1881, on her first voyage, for
tbe purpose of hunting otter and seal in the North Pacific Ocean and
in the Bering, China, and Japan Seas. Her crew, as shipped before
the consul-general, consisted, besides the captain, of a German mate,
named Charles Robert Conrad, a German mate and hunter, named
Friedrich von Well; a ITorwegian hunter, named William Smitb; a
Japanese cook, and eighteen Japanese seamen. She hunted for otter
and seal among the Kurile group of islands, belonging to Japan, nn^*^
the beginning of October, 1881, when rough weather came on a^d
checked her operations.

"On the 2.3th of October, the Diana, having then sailed northeasterly
to the vicinity of the Copper Islands (Medvo or Medoi), a Bussian pos-
session, three boats were sent ashore to find a landing and secure a
provision of wood and water. When the boats had come within some

072

AP. XXII.] RIGHT OF UNREGISTERED SHIP-TO FLAG. [§ 410.

;y yards of the shore, they were fired upon by unseen persons from
3 cliffs of the island. Three men, all of them Japanese seamen, were
led, and five men were wounded, of whom three, were Japanese, the
lers being the German, von Well, and the Norwegian, Smith, each of
lom was in command of a boat. The survivors fied to the Diana,
lich, after taking them on board, raised the United States flag at
Ifmast, displayed a signal of distress, and awaited some less hostile
moDstration on the part of the natives on shore. No response was
ide to the signals, and the Diana set sail for the nearest port, Fetro-
.vloosk, in search of surgical aid and supplies. She arrived there on
e 30th of October, and the wounded men received prompt and con-
lerate treatment in the Government hospital.

"Captain Petersen at once reported to the governor of Petropavloosk
e outrage perpetrated by the natives of Copper Island, and urged that
vessel should be sent thither to ascertain the facts and punish the
fenders. The request was not Complied with, on the ground that, as
ieged, the lateness of the season made navigation dangerous, and no
3ps whatever appear to have been taken to investigate the occur-
Dce.

''On the 5th of November, the governor summoned Captain Petersen
fore him, and inquired where he had captured his fur-seal. Gap-
in Petersen replied that the skins on board had been obtained in
^panese waters, at the Kurile groups. The governor, however, appar-
tly not satisfied with the explanation, ordered the seal-skins to be
Dt ashore, because, as he said, they might possibly have been taken
Bussian waters, where, by a proclamation (which has heretofore been
e occasion of instructions to your legation), the capture of fur-seal by
%ign vessels is prohibited. To this order, founded, as would seem,
mere suspicion, and one which the vessel's own log of her cruise in
8 Eurile Islands would probably have shown to be unwarranted,
iptain Petersen very naturally demurred, whereupon force was em-
)yed, 14 soldiers were sent on board the schooner, and five hundred
d seventy-two skins were seized and carried on shore. For these the
vernor gave Captain Petersen a receipt, and, it is stated, referred him
* redress to the Bussian consul at Yokohama, to> whom he said the
!eipt might be shown in support of any claim Captain Petersen
ght advance.

'^The Diana was then allowed to sail for Yokohama, and on ar-
ring there, Captain Petersen made formal complaint to the United
ates consul-general, filing with him a sworn statement in support of
3 claim, with affidavits of the European members of his crew as to the
ith of the facts alleged. A duplicate original of Captain Petersen's
tition and copies of the other depositions mentioned are herewith
^Dsmitted.

"You will observe that Captain Petersen claims indemnification to
e amount of $3G,000 from the Russian Government. In estimating

S. ]Mis. 1G2— VOL. Ill 43 CT3

§410.] ships' papers and sea-letters. [chap. XXII.

the loss, the gravity of tho outrage committed upon the defenseless
boats of the Diana by the iuliospitable natives of Medvoi, the breaking
up of the voyage of the vessel, joined to the actual seizure of valuable
seal-skins lawfully taken outside of Eussian jurisdiction, are items to
be considered. Without further investigation, this Department is not
prepared to state whether the amount of Captain Petersen's claim is
reasonable or not. Further inquiry is now being made on this subject,
the result of which will be communicated to you.

<*In addition to the claim on behalf of the captain, inasmuch as the
seamen on board of the vessel were in actual service under the United
States flag, this Government must ask due indemnity for the five
wounded men and for the families of the three men who were murdered.

''You will lose no time in making earnest representation of this case
to the Government of His Majesty the Czar, through the ministry for
foreign affairs. You will, while stating the facts and asking an imme-
diate and searching investigation thereof, express the deep regret of
the President on learning of this savage attack committed upon in-
offensive seafarers by the subjects of a power whose just and generous
treatment of strangers on its coasts have been so often and of late so
strikingly manifested. You will say that the President deems tbe oc-
casion one for the Eussian Government not only to visit its severe dis*
pleasure on the savages who, by this barbarous act have brought dis-
credit upon the Russian name, but to tender also to Captain Petersen
sucli reparation as will insure the return of the property taken from
him on groundless suspicion or its fair value, as well as make good to
him the loss and injury sustained through the deplorable event. And
you will further say that this Government looks to that of Eussia for
suitable and just indemnification in the case of the killed and wonoded
seamen who at the time of the attack were under the protection of tho
flag of the United States, and that this simple and appropriate redress
is asked for each and all of the sufferers in the firm confidence that the
demand will commend itself to the sense of justice of the Eussian Gov'
ernment, and that its response will be prompt and adequate."

Mr. J. Davis, Acting Sec. of State, to Mr. Hnnt, Aug. 13, 1882. MSS. ^^-^
Russia.

On January 12, 1884, ^Iv. Prelinghuysen instructed Mr. Hunt to re-
frain from further pressing this claim, the reason being want of a proper
case on the merits.

" I have received and read with care your number 501, of the 4th ul*
timo, detailing the transfer of the Chinese Merchants Steam l^avigation
Company's vessels to the American flag, July 31 last. The transaction
appears to have been discreetly arranged, and the appropriateness of
the vessels in question reverting under the flag whicli they first bore
before the line passed under Chinese control is apparent.''

Mr. FreliDghoyscn, Soc. of State, to Mr. Youug, Oct. 23, 1884. MSS. W^">
China.

C74

^ XXII.] RIGHT OF UXBEGISTERED SHIP TO FLAG. [§ 410.

is instractioo refers to the sale, duriDpf the French-Chinese war then
inp:, of certain Cbinese vessels to Eussell & Co., citizens of the
ed States.

I examination of Mr. Young's dispatch No. 501, and of the vohimi-
papers thereto attached, prives no indication that these vessels or
>f them, were built in the United States, or registered as such.

^he recent purchase by citizens of the United States of a large
ng fleet, heretofore under the Chinese flag, has considerably en-
ed our commercial importance in the East. In view of the large
)er of vessels built or purchased by American citizens in other
tries and exclusively employed in legitimate traffic between for-
ports under the recognized protection of our flag, it might be well
ovide a uniform rule for their registration and documentation, so
the bona fide property rights of our citizens therein shall be duly
juced and properly guarded."

President Arthnr, Fourth Anoual Message, 1884.

a dispatch from Mr, Smithers, of the Chinese legation, to the Sec-
y of State, No. 58, dated August 28, 1885, we are informed of the
e of the vessels to China. The closing paragraph of this dispatch
follows : ^' In this connection I may remark that Mr. Drummond,
Dglish barrister at law at Shanghai, who was the counsel of the
ese company at the time the transfer took place to Eussell & Co.,
ecently stated, over his own signature, that the sale of the ships
I perfectly honorable transaction, and that there was no obligation
ly kind on the part of the Eussells to return them to the Chinese.
fact is, as I have been credibly informed, after the refusal of the
ese Government to continue the Eicc subsidy to the American
the property was not only unrenumerative, but would have
ed disastrous to the holders."

For instrnctioDS to Mr. Smithers, seo suprOt $ 393.

As to this resale, see Mr. Bayard, Sec. of State, to Mr. Smithers, Apr. 20, 1885.

MSS. iDst., China; For. Kel., l^Jdo ; with ioclosore, given at large, iupra, $

393.

V'as the Arctic such a vessel [a vessel of the United States, entitled
irry the flag] ? It is conceded that she was not registered as
^ and that she could not have been so registered, as her master
QOt a citizen of the United States and she was built abroad. On
»ther hand, she was owned by a citizen of the United States, and she
igs to a numerous class of vessels navigating the waters of Japan,
a, and the North Paciflc, which, carrying the flag of the United
», owned by citizens of the United States, and augmenting largely,
lirectly, the resources of the United States, are not registered as
ed States vessels* It has been ruled more than once by me, follow-
ti this a long line of precedents in this Department, that such ves-
80 owned, and thus carrying the flag of the United States, are en-
l to the protection of the United States, and that the United States
[)ermit no foreign nation to question the regularity of the papers
ch vessels, aj^suming that they are owned by citizens of the United

075

§ 410.] ships' PAPliRS AND SEA-LETTERS. [CUAP. XXII.

States, and are, without molestation to others, traversing the \i\0i seas.
A marked illastration of this may be cited in the case of an otter and
seal hnnting vessel, the Diana, a vessel built in a foreign ship-yard,
commanded by a German captain, but owned by a citizen of the United
States. The Diana, when engaged' in her particular business on tbe
North Faoific, was attacked, when in the neighborhood of the Copped
Island (Medoi) by Russian residents of that island". This DepartmeBt
at once demanded redress from Eussia, and the position was taken, ^^
instructions to Mr. Hunt, August 18, 1882, that, as the Diana, thoag^
built abroad and commanded by a German subject, was sold to aci^v
zen of the United States 4n virtue of a regular bill of sale, execat^
and acknowledged before the United States consul-general at Kart^
gawa on the 21st of April, 1881,' and as the consul-general, Mn con-
formity with the United States law, and with the regulations of tLm «
Department, certified the bill of sale, thus evidencing the Americ£KQ
ownership of the vessel, and giving her Jhe right to fly the United
States flag,' she was entitled to the protection of the Government of
the United States. This position I now reaffirm in reference to tbe
Arctic."

Mr. Bayard, Sec. of State, to Mr. Garland, Oct. 20, 1836. MSS. Dom. Let.

^< Ships or vessels of the United States are the creations of the legis-
lation of Congress. Kone can be denominated such, or be entitled ^o
the benefits or privileges thereof, except those registered or enroll ^^
according to the act of September 1, 1789, and those which, after t l^e
last day of March, 1793, shall be registered or enrolled in pursuance o^
the act of 31st December, 1792, and must be wholly owned by a citiz^o
or citizens of the United States, and to be commanded by a citizen ^^
the same.

"And none can be registered or enrolled unless built within the Unit ^^
States before or after the 4th of July, 177C, and belonging wholly to •**
citizen or citizens of the United States, or, not built within said Stat ^^'
but on the 16th of May, 1789, belonging, and thence continuing to tr*'
long, to a citizen or citizens thereof; orships or vessels captured fro^
the enemy, in war, by a citizen, and lawfully condemned as prize, ^^
adjudged to be forfeited for a breach of the laws of the United Stat^^»
and being wholly owned by a citizen or citizens thereof. (1 Stat. I^-'
§ 2, 288.)

" Ships or vessels not brought within these provisions of the acts ^
Congress, and not entitled to the benefits or privileges thereunto l^^*
longing, are of no more value as American vessels- than the wood ai^^
iron out of which they are constructed. Their substantial if not entif^'
value consists in their right to the character .of national vessels, and t^
have the protection of the national flag floating at their mast's head.

"Congress having created, as it were, this species of property, auc^^
conferred upon it its chief value under the power given in the Constitu -

676

CHAP. XXII.] RIGHT OP UNREGISTERED SHIP TO FLAG. [§ 410.

-tion to regalate commerce, we perceive no reason for entertaining any
serious doabt bat that this power may be extended to the secnrity and -
protection of the rights and titles of all persons dealing therein. The
Jadicial mind seems to have generally taken this direction."

Nelson, J., White's Bank r. Smith, 7 Wall., 655, G56.

The point decided in this case was that under the act of July 29,
1S50, the recording of a mortgage in the office of a collector of the ves-
sel's home port has the effect, irrespective of State legislation, of giving
tbe mortgagee a preference over a subsequent purchaser or mortgagee.
It was further held that the home port of the vessel is the port in which
tlie bill of sale, mortgage, etc., should be recorded.

" The first section of the act of 1817 prohibits the importation of any
goods or wares from any foreign port into the United States except in
two cases :

"Ist. They may be imported in vessels of the United States; or,
*^ 2d. In such foreign vessels as truly and wholly belong to the citizens
or sabjects of the country of which the goods are the production, or
from which they are most usually first shipped for transportation.

'^ The claimant's answer does not bring him within either of these
classes: *

'^ 1. The Merritt is not a vessel of the United States. The informa-
tion alleged — ^it was not denied, and that is all the case contains upon
the sabject — that the Merritt was the proj^erty of citizens of the United
States, and that she was a foreign-built vessel. That she was owned
by citizens of the United States did not make her a vessel of the United
States. By the statute of 1792 only ships which have been registered
^n the manner therein prescribed shall be denominated or deemed ves-
^Is of the United States, entitled to the benefits or privileges apper-
taiuiog to such ships. There is no allegation that the Merritt had been
^ registered. Indeed, she could not have been under the provisions of
the act last referred to.

**2. The cargo of the Merritt was iron and lumber, the production of
the British provinces of Canada, while her owners were citizens of tUfi
United States. She did not, therefore, come within the second descrip-
tion of the statute of 1817, as a foreign vessel truly and wholly belong-
^^g to citizens of the country of which the cargo was the growth or
PiXKlaction. On the contrary, it is conceded by the pleadings that her
^^ners were American citizens. The Merritt, therefore, falls within the
Pi^)l)ibition of the act, and is liable to forfeiture; she was neither a ves-
^1 of the United States nor a foreign vessel wholly belonging to citi-
^08 of the country of which her cargo was the production.

"Bat the claimant seeks the benefit of the proviso of the act, viz ;
'That this regulation shall not extend to the vessels of any foreign
Nation which has not adopted, and shall not adopt, a similar regula-
tion.' He alleges that neither the Kingdom of Great Britain nor the
province of Canada has adopted similar regulations.

Oil

§ 410.] ships' papers and sea-letters. [chap. XXII.

'•Tlio caso does not show that the Merritt has any of the evulences
of being a British ship. She produces no register, or certificate^ or
document of any kind to entitle her to make that claim. The fact that
she is foreign built does not prove it. Proof even that she was built in
Great Britain would not establish it. Pirates and rovers may issue
from the most peaceful and friendly ports. The documents a vessel
carries furnish the only evidence of her nationality. Of these the Mer-
ritt is entirely destitute, so far as the case shows. There is nothing,
therefore, to bring her within the terms of the proviso."

Hunt, J., Tho Merritt, 17 Wall., 5^5/.

In this case it was held that a vessel built in Canada, but owned by
citizens of the United States, and loaded with Canada products, can*
.not be regarded either as a vessel of the United States, or as a fbreign
vessel belonging to citizens of the country of which the cargo was
the growth. It was held, therefore, that if she was engaged in trans-
porting the products of Canada into the ports of the United States,
she was subject to forfeiture under the act of JVIarch 1, 1817. (3 Stat.
L., 351.) It is to be observed that, according to the statement of Judge
Hunt, the Merritt had "no register, certificate, or document of any
kind" to show her nationality. It was, however, conceded bj the
pleadings that her ftwners were citizens of the United States.

^< It is to be understood that every vessel of the United States which
is afloat is bound to have with her, from the officers of her hooae port,
either a register or an enrollment. The former is used when she is en-
gaged in a foreign voyage or trade, and the latter when she is engaged
in domestic commerce, usually called the coasting trade. If foood
afloat, whether by steam or sail, without one or the other of these, and
without the right one with reference to the trade she is engaged in, or the
place where she is found, she is entitled to no protection under the la^^
of tho United States, and is liable to seizure for such violation of the
law, and in a foreign jurisdictiou, or on the high seas, can cla im no right*
as an American vessel."

Miller, J., Badger f. Gutierez, 111 U. 8., 736, 737.

In this case it is held that a collector who detains a ship's papery
when the ship is not under seizure, and when her papers are not depo^*
ited with him for the purposes of entry and clearance, subjects hims^*^
to an action for damages.

As to the statutes regulating the duties cf consuls in respect ^^
registered vessels, the following rulings of Attorneys-General may ^
cited :

Section 4309, Revised Statutes, does not require the papers of (^
American vessel in a foreign port to be delivered to the consul, exccp
in cases where it is necessary to make an entry at tho customhonse.

4 Op. '^, Mason, 1845

^78

CHAP. XXII.] EIGHT OP UNREGISTERED SHIP TO FLAG. [§ 410.

The master of a vessel, on ber " arrival '^ in a foreign port, is not
Bompellable to deposit lier papers with the consul, unless the arrival
be such as involves entry in the custom-house and clearance.

6 Op., 163, Cashing, 1853 ; 9 ihid,, 256, Black, 1858.

Masters of American vessels are subject to suit for forfeituie in the
oame of the consul for omission to deposit with him the papers accord-
ing to law, but not to indictment. (Rev. Stat, § 4310.)

7 Op., 395, Gushing, 1855.

The master of an American vessel sailing to or between ports in the
British Ifl^orth American provinces is required, on arriving at any such
port, to deposit his ship's papers with the American consul.

11 Op., 72, Bates, 1866.

Section 1720, Bevised Statutes, does not change or affect the duties
of masters of American vessels running regularly by weekly or monthly
trips or otherwise, to or between foreign ports, as imposed by act of
1803. (2 Stat. L., 203 ; Rev. Stat., § 4309.)

Ihid.

If an American vessel is obliged by the law or usage prevailing at a
foreign port to effect an entry, and she does enter conformably to the
local law or usage, her coming to such foreign port amounts to an ar-
rival within the meaning of section 2 of the act of 1803 (2 Stat. L., 203;
Bev. Stat., § 4309), independently of any ulterior destination of the
vessel, or the time she may remain or intend to remain at such port, or
the particular business she may transact there.

Ibid.

The question of port jurisdiction of consuls over seamen and shipping
has been already discussed.

Supra, $ 1^*

** I have the honor to state to you that I have carefully considered
the questions presented for your opinion by Hon. Hamilton Fish, Sec-
retary of State, in his letter to you of the 20th of November last, which
letter was referred by you to me, with the direction that I should pre-
pare an opinion on the same, and I beg to report the following as my
opinion :

"The first question submitted by the Secretary of State is as fol-
lows :

" ' Is a foreign-built vessel, not a registered vessel of the United States,
t>ut wholly owned by citizens of the United States, entitled to bear the
flag of the UnHed States ^ '

"And to this question my answer is yes.

"I do not find that any statute law of the United States iu any way
declares what vessels shall or what vessels shall not carry the flag of
the United States ; but the so-called navigation laws declare, to speak
generally, that only vessels built in the United Statess and owned by
citizens of the United States can be registered as vessels of the United

670

^410.] ships' papers and SEA-I^ETTERS. * [chap. XXII.

•

states, and farther, that no other than registered vessels shall be de-
nominated and deemed ships or vessels of the United States, entitled
to the benefits and privileges appertaining to such ships oi vessels.
(See act of 3l8t Dec., 1792, 1 Stat. L., p. 287.)

"The benefits and privileges reserved by the act above cited to reg-
istered vessels of the United States do not, in my opinion, restrict the
right to carry the flag of the United States, but refer particalarly to
certain commercial benefits and privileges which, by varioas laws of the
United States, are given, to registered vessels of the United States;
that is, to vessels built in the United States, in order that ship-bnilding
in the United States may be encouraged.

'* While the navigation laws give such commercial privileges to ves-
sels built in the United States, they in no way forbid citizens of the
United States to own vessels built in other countries, nor is the protec-
tion of the United States in any way denied to such foreign-built vessels
if they are owned by citizens of the United States.

'« So held Mr. Cushing, in 1854 (6 Op., 638), and so held Mr. Tal-
bot, Acting Attorney-General, on August 31, 1870. (See opinion, not
printed.) The question submitted to Mr. Gushing by Mr. Marcy, referred
directly to the right of a foreign-built vessel owned by citizens of the
United States to carry the flag of the United States, and Mr. Cashing
replied: *Upon full consideration, therefore, of all the relations of the
subject, there remains no doubt in my mind as to the right of a citizen
of the United States to purchase a foreign ship of a belligerent power,
and this anywhere, at home or abroad, in a belligerent port or a Leatral
port, or even upon the high seas, provided the purchase be made h(m
fid€j and the property be passed absolutely and without reserve, and the
ship so purchased becomes entitled to bear the flag and receive the pro-
tection of the United States.'

<< Mr. Gushing's opinion is in terms limited to vessels purchased from
belligerents, but if foreign-built vessels so purchased by citizens of the
United States are entitled to the protection of the United States, still
more are vessels purchased from foreign nations in time of peace en-
titled to such protection.

" You will notice that Mr. Gushing directly answers the first question
of Mr. Fish, for he declares that the ship so purchased becomes entitled
to bear the flag of the United States, and I should now simply refer to
this opinion as an answer to the question submitted by Mr. Fish had
not Mr. Talbot in a certain way dissented therefrom.

" In answer to questions submitted to him by Mr. Creswell, Post-
master-General, Mr. Talbot says : ' I have no hesitation in giving niy
opinion that this class of property, namely, vessels once foreign and now
owned by citizens of the United States, are, in the words of your ques-
tion, entitled to the protection of the Government of this country; f^^
word protection here being used in its primitive sense, and signifyiDf
protection from depredation or injury to foreign Governments or pow-
ers.' So far he agrees with Mr. Cushing, but farther on he says; 'I
refrain from expressing concurrence wi& Mr. Gushing's opinion that
such vessels are entitled to bear the flag of the United States. While it
might be true in a certain sense, yet I hesitate to assent to it as a trath
having practical force. I doubt the propriety of declaring a vessel en-
titled to bear the flag of a nation when she can have on board no doctt-
ment known to international law as witnessing that title, and I appre-
hend belligerent cruisers upon the sea and prize courts upon the shore
would give eflect to this doubt.^

CSO

CAP. XXII.] EIGHT OP UNREGISTERED SHIP TO FLAG. [§410.

'* Thus Mr. Talbot agrees with Mr. Cashing that any ship owned by
wizens of the United States is entitled to the protection of the United
ates, but while Mr. Guslung would give to any such ship the right to
rry the flag of the United States, Mr. Talbot hesitates to give the
^Lt to carry that flag to any ship not registered, that is, to speak gen-
ially, to any foreign-built ship. Mr. Gushing regards the bill of sale
the true evidence of American ownership, the one best known to in-
rnational law, while Mr. Talbot regards the register as the only docu-
3nt recognized by prize courts.

*' I cannot think that Mr. Talbot was right. A flag is but the outward
mbol which a ship carries to show her nationality, and this nationality
recognized by the law of nations as determined by the nationality of
r owners. A ship's flag therefore should properly correspond with her
tual ownership. Frequently in prize courts questions arise as to the
rnership of a certain vessel, but when that question is determined
e nationality of the* ship is determined and the court practically say,
is vessel is owned by citizens of a certain country, she is entitied to
e protection of that country, she should carry the flag of that country^
id must be condemned or released as the property of citizens of that
untry.

^^ The court may examine various papers and witnesses to ascertain
e true ownership, and when there is a register that document may be
long these papers, but in the words of Lord Stowell, * a bill of sale
the proper title to which the maritime courts of all countries would
>k. It is the universal instrument of the transfer of ships in the
age of all maritime countries.' (The Sisters, 5 G. Eob., 155 ; see 3
int's Com., 130.)

" The flag, then, the outward symbol of ownership, should properly
rrespoud with the bill of sale, the universal instrument of the actual
nership of a vessel.

^^ So has the flag come to be regarded as the outward symbol of na-
»nality that even in solemn treaties it is spoken of as if it were the
adusive evidence of such nationality, and in this way the word flag
used in the rules laid down iu the declaration of Paris, for example :
'^ The 2d article provides that the neutral flag (le pavilion neutre)
vers enemy's goods, with the exception of contraband of war.
*'And again, the 3d article provides that neutral goods, with the
option of contraband of war, are not liable to capture under the
iemy's flag (sous pavilion ennemi),

^^These rules release neutral goods in an enemy's ship iu certain cases,
(It still the ship may be condemned because she carries the enemy's
H} that is, because she is owned by citizens of an enemy's country,
Qd this irrespective of the fact that she was built in another country.
^^ If, then, vessels must be protected and may be condemned because
iey are owned by citizens of the United States, certainly they must
Dt, except by express statute, be held as forbidden to carry the flag of
)6 United States, which is but the sign they show to give notice that
Jey are entitled to that protection. Without doubt Congress could
ave forbidden any foreign-built ship to carry the flag of the United
tates, but it has not done so. Previous to 1854, the registry laws of
reat Britain were very similar to those of the United States, but the
flirts of Great Britain held that though a foreign-built ship could not
e entitled to a British register, yet if wholly owned by British subjects
ich a ship was entitled to British protection. (See cases cited by Mr.
ashing.)

G81

§ 410. j SCIPS' PAPERS AND SEA-LETTERS. [CIIAP. XXII.

" By the act of 17 and 18 Victoria, ch. 104 (Aug. 10, 1854), all sbips,
wherever built, became entitled to receive a British register, provided
tbey were owned by subjects of Great Britain. Formerly a British reg-
ister was an evidence that a ship was built and owned in Great Britain;
now a British register is simply evidence that a ship is owned in Great
Britain, and is, as it were, but confirmatory evidence of the bill of Sale.
Formerly a foreign-built ship could not be registered as a British ship,
but was entitled to the protection of the British flag, provided she was
owned by British subjects. Now every vessel owned by British sub-
jects can have a British register, and the statute denies the righttouse
the British flag to any vessel which does not have a British register,
that is, which does not have the official evidence that she is owned by
British subjects.

** While the British registry law has changed, the United States law
remains the same. The British law gives no exclusive privileges to ves-
sels built in Great Britain, but denies the right to carry its flag to any
vessel not having an official register as the evidence of her Britisti
ownership, while the United States does not deny its flag or protection
to any vessel owned by citizens of the United States, but restricts the
privileges and benefits of its commerce to those vessels which carry an
official register as the evidence that they were built and owned in the
United States. A British-built vessel, owned by citizens of the United
States, cannot be registered either in Great Britain or in the United
States ; she cannot carry the British flag ; she is entitled to the protec-
tion of the United States ; the flag of. the United States is but the out-
ward sign that she is entitled to that protection ; no statutes forbid her
to carry that flag, and without such express statute I cannot think that
right should be denied her.

"Under the present laws, in my opinion, any vessel wholly owned by
citizens of the United States is entitled to carry the flag of the United
States.

*' I am aware that this opinion might, under existing laws, if generally
acted upon, be the source of some embarrassment, for the United States
may be called upon to protect a vessel carrying its flag without pos-
sessing any official evidence that such vessel is entitled to that protec-
tion; but still more embarrassment would seem to me to result from the
opinion of Mr. Talbot, should the United States be called upon to protect
a vessel owned by citizens of the United States though sailing under s
foreign flag.

" 1 pass on to consider the second question proposed by Mr. Fishf
which is as follows :

" ^ Which of the below-mentioned acts of Congress are applicable^
foreign-built vessels which are not registered vessels of the United
States, but which are wholly owned by citizens of the United States!

*^ 'Act of 28th February, 1803 ; 2 Stat. L., 203, particularly the 2d and
3d sections. (See Consular Regulations 1870, 212.)

" 'Act of 20th July, 1840 : 5 Stat. L., 394. (See Consular Regulations
1870, 217.)

'* 'Act of 20th July, 1850: 0 Stat. L., 440, section 6. (See Consular Beg*
ulations 1870, 222.)

" 'Act of August 18, 1856 ; 11 Stat. L., 52, particularly the sections 2o
to 28, inclusive. (See Consular Regulations 1870, 239.)

" 'Act of August 5, 18C1 : 12 Stat. L., 315. (See Consular RegnlatioD^
1870,254.)

" 'Act of February 19, 1802 ; 12 Stat. L., 340. (See Consular Begol^
tions 1870, 255.)

(i^2

CHAP. XXII.] Rianx of unregistered ship to flag. [§ 410.

" *Act of April 29, 1864; 13 Stat. L*, 61. (See Consular Eegulations
1870, 262.)

»< *Act of June 2Sj 1864 ; 13 Stat. L., 201. (See Consular Eegulations
1870, 264.)

*« 'Act of June 29, 1870 : 10 Stat. L., 169. (See Consular Eegulations
1870, 271.')

" This second inquiry of Mr. Fish refers in the first place to the 2d
and 3d sections of the act of 28th February, 1803.

''The 1st section of this act provides ivhat shall be done by the
master of any vessel bound on a foreign voyage before a clearance be
granteil to her, and what he shall do on his arrival at the first port of
the United States.

"The 2d section makes it the duty of every master or commander of
a ship or vessel belonging to citizens of the United States, who shall
sail from any port of the United States, on liis arrival at a foreign port,
to deposit his register, sea-letter, etc., with the consul, which register,
sea-letter, etc., it shall be the duty of the consul to deliver to such mas-
ter or commander on his producing to him a clearance fi*om the proper
oflBcer of the port where the ship or vessel may be.

*^ The 3d section provides that whenever a ship or vessel belonging
to a citizen of the United States shall be sold in a foreign country and
ber company discharged, or when a seaman or mariner, a citizen of the
United States, shall, with his own consent, be discharged in a foreign
country, three months' pay over and above the wages which may then
bo duo to all mariners or seamen on board who may be designated as
citizens of the Unit^ States shall bo paid to the United States consul
by the master or commander of that vessel.

^^In 1831 some questions arose as to whether the act of 1803 (particu-
larly the first three sections thereof) was applicable to the mercantile
marine of a foreign nation or people on which American seamen were
employed or in which American citizens were interested as owners.

**The matter being referred to Mr. Berrien, he wrote to the Secretary
of State (2 Op., 448), that in his opinion this act was confined 'to
vessels owned by citizens of the United States and constituting a part
of her mercantile marine by sailing under her flag.'

*^ln terms this opinion of Mr. Berrien would make these sections (quot-
ing Mr. Fish) ' applicable to vessels which are not registered vessels
of the United States, but which are wholly owned by citizens of the
United States,' for, if my opinion before g\yen is correct, such vessels
may sail under the flag cHf the United States and so, in a certain sense,
<^ODstitute part of her mercantile marine.

" It is not probable, however, that Mr. Berrien particularly consid-
ered the question as to whether any foreign-built vessel could carry the
fiag of the United States, but he evidently was of the opinion that the
*ct of 1803 was confined to vessels that had a United States register,
for he interpreted the same according to the terms of the 1st and 2d
lections thereof, which sections aro evidently confined to vessels that
have a United States register. Therefore, while Mr. Berrien confined
^Msact in terms to vessels constituting a part of the mercantile marine
of the United States by sailing under her flag, it is evident from the argu-
nient he used that so far as he considered the question he regarded the
^ords * constituting a part of her mercantile marine by sailing under
her flag,' as synonymous with the words ' having a United States reg-
ister.'

*^Mr. Berrien must therefore be held to have construed this act as not
properly applicable to any vessels that did not have a United States

§ 410.] ships' papers and sea-letters. [chap. xxii.

<' Kor do the 2d and 3d sections of this act seem to mo to be ap-
plicable to the class of vessels described by Mr. Fish, for althongb, iu
my opinion, such vessels are entitled to carry the flag of the United
States, yet the 2d section clearly applies only to registered vessels,
and though the 3d section, if standing alone, might be considered as
applicable to vessels owned by citizens of the United States whether
registered or not, yet when taken in connection with the first two sec-
tions of the act, I think this third section is more properly to be con-
strued as applicable only to registered vessels of the United States, and
therefore as not applicable to foreign-built vessels which are not regis-
tered vessels of the United States.

" The 2d inquiry of Mr. Fish refers, in the second place, to the act
of 20th July, 1840, which act relates particularly to the shipping and
discharge of seamen and to the duties of consuls in relation thereto.
This act is in fact in extension of, and supplementary to, the act of 28th
February, 1803, already considered, and must be construed like that
a<;t as not applicable to the class of vessels described by Mr. Fish, bat
only to registered vessels of the United States.

" The 2d inquiry of Mr. Fish refers, in the third place, to the 6ft
section of the act of 29th July, 1850, which section is but an amend-
ment to the 12th section of the act of 20tli July, 1840, already consid-
ered, and docs not alter the construction I have already put upon that
act.

4* The 2d inquiry of Mr. Fish refers, m the fourth place, to sections
25 to 28, inclusive, of the act of 18th of August, 1856, which act is the
general act of that date, to regulate the diplomatic and consular sys-
tems of the United States, and as far as sections 25 to 28, inclusive, aie
concerned is in amendment of the acts of 1803 and 1840, already con-
sidered, and like them must be construed as not applicable to the class
of vessels described by Mr. Fish.

'^ The 2d inquiry of Mr. Fish, in the fifth place, refers to the act of 5th
of August, 1861, which act declares that American vessels rannin^
regularly by weekly or monthly trips, or otherwise, to or between for-
eign ports shall not be required to pay fees to consuls for more than
four trips in a year, anything in the law or regulations respecting consn-
lar fees to the contrary notwithstanding.

"In the several acts a^feady considered vessels having a register of
the United States are generally described <is * vessels of the United
States,' and in this act of August, 1861, the words ^American vessels
are used in the same sense, as appears from the connection of this act
with the earlier acts already considered. .

"The words ^ American vessels' and the words * vessels of the United
States' are in the statutes used interchangeably and perhaps some-
what loosely, and they were so used in the act submitted to Mr. Tal-
bot for his opinion as above stated, but he was unable to give any
meaning to the words ^American vessel' which did not imply that they
meant a vessel having a United States register, and so the sameworo*
must be construed in the act of August 5, 1861.

"The 2d inquiry of Mr. Fish, in the sixth place, refers to the actoi
the 19th of February, 1862, which in exact terms is particularly appKca-
Die to vessels registered, enrolled, or licensed within the United States?
the act being entitled «An act to prohibit the coolie trade by American
citizens in American vessels.' ^.<>i

lAP. XXII.] RIOUT OF UNREGISTERED SHIP TO FLAG. [§ 410.

"The 2d inquiry of Mr. Fish, iu the seventh place, refers to the act of
le 29th of April, 1864, which act is entitled An act to provide for the
illection of hospital dues from vessels of the United States sold or
ansferred in foreign ports or waters, and must be construed, like the
its of 1803 and 1840, relating to the same subject and already consid-
•ed, as applicable only to registered vessels of the United States.
''The 2d inquiry of Mr. Fish refers, in the eighth place, to the act
' 28th of June, 1864, which act repeals that portion of * An act for the
gulation of seamen on board the public and private vessels of the
nited States,' approved the 3d of March, 1813, which made it not
wful to employ on board any of the public or private vessels of the
nited States any person or persons, except citizens of the United
tates, etc. This act, under the construction already given to the
ords * vessels of the United States,' is only applicable to registered
jssels of the United States.

"The 2d inquiry of Mr. Fish, in the last place, refers to the act of
me 29, 1870, which act provides that from the master or owners of
rery vessel of the United States arriviug from a foreign port, or of reg-
tered vessels employed in the coasting trade, the sum of Ibrty cents
ir ton shall be collected by the collectors of customs at the ports of
le United States, and for each and every seaman who shall have been
nployed on said vessel since she last entered at any port of the United
tates, etc.

/^This act in terms so distinctly relates to registered vessels of the
nited States that it seems to confirm all the consfructions I have put
poD the acts previously considered, viz, that like this act they are
aly applicable to * vessels of the United States,' or < American vessels ';
lat is, to registered vessels of the United States.
"1 then arrive at the conclusion that any vessel wholly owned by
tizens of the United States is entitled to the protection of the United
tates, and can carry the flag of the United States, but that none of
le acts, or parts of acts, referred to by Mr. Fish are applicable to any
essel that does not have a United States register.
^^If this conclusion is right, a vessel owned by citizens of the United
tates, but not built in the ITnited States, though entitled to its pro-
JCtion, would yet be under no relation thereto or to its consuls, from
hich that vessel, in a certain way, would be compelled to bear part
f the cost of that protection by the payment of the fees due under
cisting statutes from registered vessels to the collectors, the consuls,
id divers other officers of the United States, but she would sail the
^aD flying the flag of the United States, entitled to demand protec-
on from the Kavy and the consuls of the United States, but yet with-
it any official papers on board from officers of the United States
hich would present 2?nma facie and official evidence that she was en-
tled to carry that flag and to receive that protection.
" While I have been unable to arrive at any other conclusion than
i)ove stated, I have not failed to see the difficulties that might arise
under existing statutes the citizens of the United States should en-
ige in foreign commerce in foreign-built ships, and I judge that the
ecretary of State contemplated that the existing laws might be defect-
e when he asked for your official opinion, so that, Mf necessary. Con-
fess may at the coming i^ession be called in to pass further legislation
i the matter.'

"As I interpret the existing statutes, they seem to mo»to be defect-
€. These defects, however, though existing for now many years,

085

§ 410.] ships' tapers and SEA-LETTEHS. [chap. XXII.

have only recently, by the great coaiinercial changes that have taken
place, come to be apparent and of considerable magiiitade.

^' The navigation act of 1792, on which all the acts hereinbefore con-
sidered are based, was enacted when United States citizens were en-
gaged in no commerce which did not contemplate a voyage from and to a
part of the United States. At that time England had practically closed
her domestic and export commerce to vessels not built and owned in
Great Britain. Under these circumstances Congress made laws which
l)ractically closed the domestic and export commerce of the United
States to any but registered vessels of the United States^ and gener-
ally enacted that no vessels should be registered as vessels of the
United States except they were built in the United States.

^' This legislation was doubtless intended to prevent, and did practi-
cally prevent, citizens of the United States from owning vessels not
built in the United States, but it so prevented them, not by express
enactment to that effect, but from the fact that in such vessels United
States citizens could not in consequence of that act carry on any com-
merce with the United States, and no other commerce was open to
them.

'^To-day, however, the situation has changed, though the United
States law remains the same.

^'England opens her ports to the vessels of all nations, but of greater
importance than this, China and Japan and other nations present a
new field for commerce.

'^ Meanwhile the expense of building vessels in the United States has
greatly increased; it is now possible, practicable, and profitable for citi-
zens of the United States to carry on commerce in the Pacific Ocean
in vessels owned by them, but which vessels have no need to come to
bring freight to or to export it from the ports of the United States.

'< Under these circumstances the laws of the United States cease to
be effective to prevent citizens of the United States from owning ves-
sels which are built out of the United States and are not registered in
the United States, and it does not seem to me strange, then, to find that
the laws of the United States have not as yet fixed any duties npon
the owners of these vessels which never come to the United States, and
so never have need of an American register to give them the privi-
leges of the domestic and export commerce of the United States. If
such vessels should come to the United States they must bear all the
burdens placed npon foreign vessels, and, knowing this, they remain
engaged in foreign commerce, entitled to the protection of the United
States, but under no special relations to the consuls of the United
States.

"Congress under these circumstances should, in my judgment, either
forbid any vessel to carry the flag of the United States which is not a
registered vessel of the United States, or should provide for the giving
of some official certificate to vessels wholly owned by citizens of the
United States wherever built, and should fix the status of such ves-
sels in Ibreign ports and before the consuls of the United States.

*'I quote from Mr. Cashing (6 Op., 053): ' The question of what par-
ticular document, if any, shall be issued from the Treasury or State
Department to a foreign-built ship lawfully owned by a citizen of the
United States in the absence of any special legislation on the subject,
i«eems to me a proper one for the consideration of the Executive and of
Congress.'

" Commenting on these words of Mr. Cushing, Mr. Talbot, says: *That
is, of the law-making power. Congress might undoubtedly autliorix^

G8G

AP. XXII.] RIGHT OF UNREGISTERED SHIP TQ FLAG. [§ 410

nssaiug of such papers, but as it was at the date of Mr. Gusbiug's
inion so is it now, Congress has not conferred the autboritv in ques-
n.'

^ Since Mr. Talbot's opinion Congress has jjassed no furtber legisla-
D on this matter, and the want of some legislation is still felt.
*Wbat that legislation sbonld be is to a great extent a question of
icy.

^Should Congress think best to prevent the citizens of the United
^tes from engaging in commerce, even between foreign countries,
^ept in vessels built in the United States, it can practically do so by
Lcting that no vessel shall be entitled to carry the flag of tbe United
ktes unless nnderexisting laws she is a registered, enrolled, or licensed
sel of the United States.

'On the other hand, shonld Congress while reserving tbe domestic
amerce of the United States to vessels built in the United States
Dk it wise to allow the citizens of the United States in any vessels
oed by them tocompete for the profits of foreign commerce, it can do so
some enactment which shall furnish the means by which an official
tificate of American ownership can be given to a vessel wholly owned
citizens of the United States and by wbich a vessel with such a cer-
cate, her owners, charterers, officers, and crew shall be declared sub-
t to the same duties and entitled to the same privileges in foreign
mtries and before a consul of the United States that they would be
bject or entitled to were they duly registered vessels of the United
ates.

''In the same enactment Congress might also provide that no vessel
cept a duly registered vessel of the United States, or a vessel possesa-
? a proper certificate that she was wholly owned by citizens of the
lited States, should be entitled to carry the flag of the United States.''

Opinion of Mr. Bcaman, Solicitor of Department of State, and Examiner of
Claims, Jan. S, 1872; approved by Mr. Akerman, Attorney-General, on
same day. Misc. Letters, Dept. of State, 1872. See criticism infra, App.,

Mio.

"As far as the records of the Department of State show, it was at
St tbe usage of the Government to issue what were called < Med-
rranean letters,' a form of which is hereunto annexed. These letters
re based, not on registry, bnt on alleged ownership by citizens of the
lited States, and authorized the vessels to which they were granted
sail under tbe flag of the United States. Subsequently, what were
led ' sea-letters' were issued, a form of one of which is annexed.
^ These letters, granted to vessels which are foreign built, and there-
t not entitled to registry under our navigation laws, are well known
maritime practice. We find, for instance, in Boiivier's Law Dic-
Dary, the following statement :

'^Sea-letter, or sea-brief (mar. law), is a document which should be
md on board of every neutral ship. It specifies the nature and quan-
y of the cargo, the place from whence it comes^ and its destination.
litLawof Nat, 197.'

'^Kevised Statutes, section 4190, clearly leaves this practice undis-
pbed. This section, whose history is given by Mr. Gushing in an
inion to be presently quoted, is as follows :

***No sea-letter or other document certifying or proving any vessel
be the property of a citizen of the United States shall be issued,
cept to vessels duly registered or enrolled and licensed as vessels of
e United States, or to vessels ichich shall be wholly otcned hy citizens of

0&1

§410.] ships' papers 'and sea-letters. [chap. XXII.

tlw United States, and furnished with or entitled to sea letters or other
castom-honse documents.^

" You will observe that, under this section, sea-letters may be granted
to vessels which shall he %cholly owned hy citizens of the United State»^
thoupfh not registered. • ♦ ♦

"The question was brought before Mr. Gushing when Attorney-
General, and in an opinion dated August 7, 1854 (6 Op., 038), tLe topic
is discussed by him with his usual exhaustiveness. From this opinion
the following passages are taken :

"'The statutes of the United States recognize the following classes
of sea-going vessels, namely :

" ' 1. Ships built in the United States, wholly owned by citizens there-
of, employed in foreign commerce, which are entitled to be registered,
and as such to enjoy all the rights and privileges conferred by any law
on ships of the United States. (Act of December 31, 1792, 1 Stat.L,
287.)

*''Sucli a ship, of course, loses her privileges as a registered ship on
being sold to a foreigner, and is thereafter treated forever as foreign-
built, even though she be purchased back by the original owner or any *
other citizen of the United States. (See opinion March 16, 1854, ante^
383.)

"'2. Vessels built in the United States, and wholly owned by citi-
zens thereof, employed in the coasting trade or fisheries, which are en-
titled to be enrolled and licensed as such, and to enjoy all the privileges,
in their particular employment, conferred by law on vessels of tiie
United States. (Act of February 18, 1793, 1 Stat. L., 305.)

"*3. Ships built in the United States, but owned wholly or in part
by foreigners, which are entitled to be recorded, but not in general to
be registered or enrolled and licensed. (Act of December 31, 1792,
ubi supra,)

^^^4. Ships not built in the United States^ but owned by citizens thereof ^
/>/ which more in the sequel.

"^5. Ships built out of the United States, and not owned by citizens
thereof.

" * C. Special provisions exist in regard to the steamboats belonging to
companies engaged in the transportation of ocean mails, as well as in
regard to those navigating the bays and rivers of the country, ^bicb
provisions relax the registry or enrollment laws, so as to admit owner-
ship, under certain regulations, of persons not citizens of the United
States.

** 'The registry and enrollment statutes of the United States are i"
imitation of those of Great Britain, in pari materia, and for thesaflJ*
objects, namely, to promote the construction and ownership of ships
in the country, and to facilitate the execution of local or public la^*
They are classified with reference to the business they may porsfl®'
their character is authenticated, and they enjoy various advantage^
from which other vessels are wholly excluded, or to which these a^
partially admitted, according to the interests and. policy of the GovefO'
ment. (Abbott on Shipping, p. 158.)

" *It is with vessels of the fourth of the above classes that we ha^^
more immediate concern.

*' * It is observable, in the first place, that there is nothing in tb^
statutes to require a vessel to be registered or enrolled. She is entitl^^
to registry or enrollment under certain circumstances, and, receiving i^)
she thereupon is admitted to certain duties and obligations; hd v

C88

p. XXII.] EIGHT OF UNREGISTERED SHIP TO FLAG. [§ 410.

ed by a citizen qf the United States^ she is American property^ and
esned of all the general rights of any property of an American,
* Secondly, the registry or eDroUment or other cuBtomhonse docu-
t, sach as sea-letter, \b prima fade evideDce only as to the owner-
I of a ship in some cases, but conclasive in none. The law even
iedes the possibility of the registry or enrollment existing in the
le of one person, whilst the property is really in another. Property
shijS is a matter inpais^ to be proved as fact by competent testi-
y hke any other fact. (U. S. v. Pirates, 5 Wheat, 187, 199 ; U. S.
medy, 11 iMd., 409 ; U. S. v. Jones, 3 Wash. 0. 0. E., 209 ; Taggart
)riug,16 Mass., 336; Wendover v. Hogeboom, 7 Johnson, 308: Bass
teele, 3 Wash. G. G. B., 381 ; Leonard v. Hnntington, 15 Jonnson,
; Ligon v. New Orleans Navigation Company, 7 Martin's E. (N. S.),
Brooks V. Bondsey, 17 Pickering, 441.) • • •
^This Government has not, as yet, followed the example of that ol
it Britain so far as to admit foreign -bailt vessels to registry, bat
I vessels may be lawfnlly owned by Americans.
'Upon fall consideration, therefore, of all the relations of the sab-
there remains no donbt in my mind as to the right of a citizen of
CTnited States to pnrchase a foreign ship of a belligerent power,
this anywhere, at home or abroad, in a belligerent port or a nea-
port, or even upon the high seas, provided the pnrchase be made
\fid€^ and the property be passed absolntely and without reserve;
the ship so parchased becomes entitled to bear the flag and receive
protection of the United States.'

The question was again referred to the Department of Justice in
\ and on January 5, 1872, the views of Mr. Gashing were affirmed
dr. Akerman, AttorneyOeneral, adopting a very able report made
im on the topic by Mr. Beaman, examiner of claims. (This report
iven above.) On June 19, 1880 (16 Op., 533), the same conclusion
stated by Mr. Devens, then Attorney-General, in an opinion from
sh the following passages are extracted :

*The provisions of the navigation laws are commercial in their char-
r, and intended mainly for the protection of American commerce'
property upon the high seas. The vessel in question is a British-
t vessel, had a British register, and upon the facts as they appear
»re me has now been sold to an American citizen and is his property,
the sale to an American citizen she has forfeited her British regis-
as I understand the British law upon that subject.
*The inquiry is, therefore, Is a foreign-built vessel, owned entirely
American citizens and having no foreign registry, entitled to carry
American flagf.

^ I am of opinion that such vessel is entitled to carry the American flag^
in this way to assert her own nationality and her claim upon the Ameri-
Oovernmentfor protection.

*The haste in which I am required to answer this question prevents
from entering into any reasoning on the subject. I refer, however,
n opinion of Attorney-General Gushing upon the subject (6 Op.,
, and also to an opinion of Mr. Beaman, of this Department, ap-
7ed by Attorney-General Akerman January 5, 1872.' "
lere follow extracts from Mr. Evarts' Instructions to Mr. Osborne,
also fh)m other instructions above quoted.]

The Gonsular Regulations issued by this Department in 1874, section
cited above by Mr. Evarts, affirm broadly that ^ the right of American
«ns to acquire property in foreign ships has been held to be a neu.

3. Mis. 1G2— VOL. Ill 44 689

§ 410.] ships' papers and sea-letters. [chap, xxil

tral right, independent of statutory law, and such property is no more
or less entitled to protection by the United States than any other prop-
erty of an American citizen.' This is qualified by section 226; botsec*
tioii 225 without this qualification is reissued in the edition of the Con-
sular Regulations of 18S1. In this edition the following new sectionfl
appear :

^^ ^ 339. The existing general regulations of the Treasury Department
nnder the customs and navigation laws (Customs Kegulations, 1874)
recognize the right of property in vessels of this character, and declare
them to be entitled to the protection of the authorities and to the flag
of the United States, although no register, enrollment, license, or other
marine document prescribed by the laws of the United States can law-
fully be issued to such vessels whether they are American or foreign
built. The former practice of issuing sea-letters in the case of the par-
chase abroad of American or foreign vessels by citizens of the doited
States is no longer authorized, and will not be permitted.

^<<340. To enable, however, the owners of a vessel so situated to pro-
tect their rights, if molested or questioned, a consular officer, though
forbidden by law to grant any marine document or certificate of
ownership, may lawfully make record of the bill of sale in his ofBoe, au-
thenticate its execution, and deliver to the purchaser a certificate to
that effect, certifying also that the owner is a citizen of the United
States. Before granting such certificate, the consular officer will re-
quire the tonnage of the vessel to be duly ascertained in pursaance of
law, and insert the same in the description of the vessel in his certifi-
cate. (See Form No. 35.) These facts thus authenticated, if the transfer
is in good faith, entitle the vessel to protection as the lawful property
of a citizen of the United States ; and the authentication of the bill of
sale and of citizenship will be prima fdcie proof of such good faith.

" ' 344. The privilege of carrying the flag of the United States is under
the regulation of Congress, and it may have been the intention of that
body that it should be used only by regularly-documented vessels. 'So
such intention, however, is found in any statute. And as a citizen is
not prohibited from purchasing and employing abroad a foreign sbipi
it is regarded as reasonable and proper that he should be permitted to
fly the flag of his country as an indication of ownership, and for the
due protection of his property. The practice of carrying the flag ^f
such vessels is now established. The right to do so will not be ques-
tioned, and it is probable that it would he respected by the oonrts.'

<<By a series of treaties the international authority of sea-letters and
of passports is recognized. (These treaties are referred to infra inde-
taii.) It must be remembered that those treaties are not only, ft^^
their nature, declaratory of international law, but are as much a paH
of the supreme municipal law of the United States as are its statutes.
And it also must be rememb€a:«d that the term < sea-letter,' as used
in these treaties, was accepted, so far as the United States vas con-
cerned, in the sense, which with us it always bore, of a passport to a ^
sel owned by citizens of the United States, irrespective of the question
of registry. • • •

^' Keeping in mind the section of the Revised Statutes above qaotedi
and the construction assigned to it, a« above stated, not only in this
Department, but in the Department of Justice, I have no hesitation
in saying that vessels owned by citizens of the United States, but for*
eign built, are entitled to carry the flag of the United States, and to
obtain, when such vessels are purchased abroad, the certificate spoci-

690

.P.XXII.] RIGHT OF UNREGISTERED SHIP TO FLAG. [§ 410.

[ ill section 340 of the Consular Eegulations above quoted. Vessels
Ms class, it is true, cannot liave in our ports the privileges given by
tute to registered vessels ; but there is no reavson why they should
leugage in foreign trade, and when in this trade carry the flag and en-
the protection of the United States. It was under sea-letters or siui-
• letters, based not on our registration laws but on the principle of the
' of nations, that ships owned by citizens of a country are entitled to
I flag and protection of that country, that a large part of the carry-
: trade of the world was done, during the Napoleonic wars, under the
I of the United States, nor was the rightfulness of this title and this
)tection ever questioned by England during those bitter and terrible
Qggles, when she questioned almost every other maritime right we
isessed. The English courts, as well as the courts of the continent
Europe, united in the principle, since then asserted by us on more than
i important occasion, that while municipal laws expanding or con-
€tiDg the law of nations, bind municipally, they do not bind inter-
tionally, and that while a nation may municipally impose peculiarly
ingent rules on its own subjects, it does not, so far as concerns its
D liability, bind its subjects to observe those rules in their dealings
tb foreigners or with foreign states. But it is not necessary to in-
ke this principle for the determination of the present issue. I hold
It even by our own legislation, documents of the character specified
section 340 of the Consular Eegulations, and in section 94 of the
easury regulations, can be granted to vessels owned by citizens of
'^ United States entitling them to fly the United States flag, and to re-
ve the protection of the United States. And I see no reason, under
r present legislation, why, in case of the United States being a neu-
1 during a war between maritime powers, this Department should
t resume the practice of issuing sea-letters to foreign built ships
ned by citizens of the United States ; though such sea-letters might
^ confer on the vessels holding them any immunities beyond those
tferred in similar cases at present by consular or customs certificates
Jale."

Opinion of Mr. Wharton, Sohoitor of Department of State and Examiner of
ClaimB, Nov. 30^ m85. See infra^ App., \ 410.

fwtifnm ireatieB between ike United Statee andvarioue naHoiM, ae to natUMMl oftoroo-

Ut and documentaiMn of veeeeU,

Aloiebs.

(1795.)

BT. Till. Any citizen of the United States of North Americai having bought any
e condemned by the Algerines, shaU not be again captured by the croiaers'of the
«ney then at sea, although they have not a passport ; a certificate ficom the con«
resident being deemed sufficient untU-such time [as] they can procure such pass-

(1816.)

BT. YII. Proper passports shaU immediately be given to the vessels of both the
^ting parties, on condition that the yessels-of-war belonging to the Bef^ency of
ien, on meeting with merchant vessels belonging to the citizens of the United
ies of America, shaU not be permitted to visit them with more than two per-
I besides the rowers ; these only shaU be permitted to go on boaf d without first
lining leave from the commander of said vessel, who shaU compare the passport,
immediately permit said vessel to proceed on her voyage ; and should any of the
eets of Algiers insult or molest the commander or any other person on board Sk

§ 410.] ships' papers and sea-letters. [chap. jxii.

Teasel so visited, or plnnder any of the property coDtained in her, on complaint bem;
made by the consal of the United States residing in Algiers, and on his producing
sufficient proof to substantiate the fact, the commander or rats of said Algerine ihi^
or vessel of war, as well as the offenders, shall be punished in the most ezemplvj
manner.

All vessels-of-war belonging to the United States of America, on meeting a crniier
belonging to the Regency of Algiers, on having seen her passports and certi£cste»
from the consul of the United States residing in Algiers, shall permit her to proceed
on her cruise unmolested and without detention. No passport shall be granted hj
either party to any vessels but such as are absolutely the property of citixens or ob-
jects of the said contracting parties, on any pretense whatever.

In the treaty of 1816 the same clause is repeated. This treaty was terminated
by French conquest, 1831 ; nipra, $ 137a.

Abokntinb Confederation.

(1853.)

Abt. YII. The contracting parties agree to consider and treat aa vobbsIb of tli»
United States and of the Argentine Confederation all those which, being furnished )tf
the competent authority with a regular passport or sea-letter, shall, under tbe then
existing laws and regulations of either of the two Governments, be recognised AiUj
and bona fide as national vessels by that country to which they respectively bekng.

Belgium.

(1858.)

A&T. X. The high contracting parties agree to consider and to treat as Belgisn t6*>
sels, and as vessels of the United States, all those which, being provided by the oom-
petent authority with a passport, sea-letter, or any other suffloient dooament,8hftIl ^
recognized, conformably with existing laws, as national vessela In the oonntryto whiol^
they respectively belong.

Repeated in Art. IX of treaty of 1875.

Bolivia.

(1858.) •

Abt. V. For the better understanding of the preceding article, and taking into ci*'
sideration the actual state of the oommeroial marine of the RepabUo of Boliviaii^ ^
stipulated and agreed that all vessels belonging exclusively to a citizen or dtiseos^
said Republic, and whose captain is also a citizen of the same, though the conitPi^
tion or the crew are or may be foreign, shall be considered, for all the objects of ^
treaty, as a Bolivian vessel.

Abt. XXII. To avoid all kind of vexation and abnae in the examination of the p*'
pers relating to the ownership of the vessels belonging to the citizens of the two cob*
tacting parties, they agree that, in case one of them should be engaged in wsr,tb»
ships and vessels belonging to the citizens of the other must be furnished with tf^
letters or passports, expressing the name, property, and bulk of the ships, as also th0
name and place of habitation of the master and commander of said vessel, in ordortht*
it may thereby appear that said ship truly belongs to the citizens of one of the ^'
ties ; they likewise agree that such ships being laden, besides the said sea-letters ^
passports, shall also be provided with certificates, containing the several paitionl^
of the cargo, and the place whence the ship sailed, so that it may be known whoth*'
any forbidden or contraband goods be on board the same ; which oertifloates shall ^
made out by the officers of the place whence the ship sailed in the aooostomed fixi^'*

692

OTAP. XXII.] EIGHT OF UNREGISTERED SHIP TO FLAG. [§ 410.

trithout sacli reqnisites said vessels may be detained, to be adjudged by the compe-
test tribnnal, and maybe declared legal prize, unless the said defect shall prove to be
>wing to accident, and snpplied by testim3ny entirely equivalent.

Brazil.

(1828.)

AsT. IV (final clause). The Government of the United States, however, considering
the present state of the navigation of Brazil, agrees that a vessel shall be considered
u Brazilian when the proprietor and captain are subjects of Brazil and the papen
are in legal form.

Art. XXI. To avoid all kind of vexation and abase In the examination of the pa-
peiB relating to the ownership of the vessels belonging to the citizens and subjects of
the two contracting parties, they have agreed, and do agree, that in case one of them
shin be engaged in war, the ships and vessels belonging to the citizens or subjects of
the other must be furnished with sea-letters or passports, expressing the name, prop-
erty, and bulk of the ship, as also the name and place of habitation of the master or
^mmander of said vessel, in order that it may thereby appear that the ship really
•and truly belongs to the citizens or subjects of one of the parties ; they have likewise
agreed, that such ships being laden, besides the sea-letters or passports, shall also be
provided with certificates containing the several particulars of the cargo, and the
place whence the ship sailed, so that it may be known whether any forbidden or ooa-
inband goods be on board the same ; which certificates shall be made out by the
officers of the place whence the ship sailed, in the accustomed form ; without such
nqoisites said vessel may be detained, to be adjudged by the competent tribunal,
aod Diaj be declared legid prize, unless the said defect shall be proved to be owing to
accident, and be satisfied or supplied by testimony entirely equivalent.

This treaty terminated Dec. 12, 1841, by notice given by Brazil. See 9upra, $t
137a, 143.

Chili.

(1832.)

Abt. XIX. To avoid all kind of vexation and abuse in the examination of the
P*p6iB relating to the ownership of the vessels belonging to the citizens of the two
^^tracting parties, they have agreed, and do agree, that in case one of them shall
^engaged in war, the ships and vesuels belonging to the citizens of the other must
^ famished with sea-letters or passports, expressing the name, property, and bulk
^ the ship, as also the name and place of habitation of the master or commander of
^f said vessel, in order that it may thereby appear that the ship reaUy and truly be*
loDgs to the citfeensof one of the parties ; they have likewise agreed that, such ships
veing laden, besides the sea-letters or passports, shall also be provided with certifi-
^tes containing the several particulars of the cargo, and the place whence the ship
^^iled, so that it may be known whether any forbidden or contraband goods be on
^^<)ard the same ; which certificates shall be made out by the officers of the place
whence the ship sailed, in the accustomed form ; without which requisites said ves-
sel may be detained, to be a4judged by the competent tribunal, and may be declared
i^ prize, unless the said defect shall be proved to be owing to accident, and be sat-
^ed or supplied by testimony entirely equivalent.

This treaty terminated Jan. 20, 1850. See fiipra, $ 137a.

Colombia.

(1824.)

Abt. XIX. To avoid all kind of vexation and abuse in the examination of the pa-
9^ relating to the ownership of the vessels belonging to the citizens of the two

§ 410.] ships' papers and sea-letters. [chap, xxe

contracting parties, they have agreed, and do agree, that io case one of them uhonl
be engaged in war, the ships and vessels belonging to the citizens of the other mm
be famished with sea-letters or passports, expressing the name, property, and bnl
of the ship, as also the name and place of habitation of the master or command
of said vessel, in order that it may thereby appear that the ship really and tmly b
longs to the citizens of 'one of the parties; they have likewise agreed that such shi]
being laden, besides the said sea-letters or passports, shall also be provided with certii
cates containing the several particulars of the cargo, and the place whence the sbi
sailed, so that it may be known whether any forbidden or contraband goods be c
board the same ; which certificates shall be made out by the officers of the p]a<
whence the ship sailed in the accustomed form ; without which requisites said vesa
may be detained to be adjudged by the competent tribunal, and may be declared l^gi
prize, unless the said defect shall be satisfied or supplied by testimony entirely equii
alent.

This treaty terminated by limitation, Oct. 3, 1636. See nipra, $$ i37a, 145w

Dominican RspuBug.

(1867.)

Art. VIII. For the better understanding of the preceding stipulations, it has bee
agreed that every vessel belonging exclusively to a citizen or citizens of the Domti
ican Republic, and whose captain is also a citizen of the same, such vessel bsTin
also complied with all the other requisites established by law to acquire such natiozu
character, though the construction and crew are or may be foreign, shaU be coDsic
ered, for all the objects of this treaty, as a Dominican vessel.

Abt. XYI. In time of war the merchant ships belonging to the citizens of either «
the contracting parties, which shall be bound to a port of the enemy of one of tti
parties, and concerning whose voyage and the articles of their cargo there shall l)
Just grounds of suspicion, shall be obliged to exhibit, as well upon the high seaa s
in the ports or roads, not only their passports, but likewise their certificates, ihowiiii
that their goods are not of the quality of those which are specified to be contrabaiu
in the thirteenth article of the present convention.

Ecuador.
(1839.)

Art. V. For the better understanding of the preceding article, and taking int»
consideration the actual state of the commercial marine of Ecuador, it has been stipo-
lated and agreed that all vessels belonging exclusively to a citizen or citizens ofsud
Republic, and whose captain is also a citizen of the same, though the^constractioa ot
the crew are or may be foreign, shall be considered, for all the objects of this tres^r
as an Ecuadorian vessel.

Art. XXII. To avoid all kind of vexation and abuse in the examination of tb«
papers relating to the ownership of the vessels belonging to the citizens of the tvo
contracting parties, they have agreed, and do agree, that in case one of them should be
engaged in war, the ships and vessels belonging to the citizens of the other most be
furnished with sea-letters or passports, expressing the name, property, and hol^ ^
the ships ; as also the name and place of habitation of the master and commandet
of said vessel, in order that it may thereby appear that said ship truly belongs to the
citizens of one of the parties. They have likewise agreed that such ships, being
laden, besides th^ said sea-letters or passports, shall also be provided with certificstrt
containing the several particulars of the cargo, and the place whence the ship ssil^*
so that it may be known whether any forbidden or contraband goods be on board tbe
same ; which certificates shall be made out by the officers of the place whence the ebip
sailed, in the accustomed form ; without such requisites said vessels may be d6taiDed^

694

CrSAP. XXII.] RIGHT OF UNREGISTERED SHIP TO FLAG. [§ 410.

to te adjndfc^d by '^^^ competent tribnnal, and may be declared legal prize, nnleea
tlio said defect shall be proved to be owing to accident, and satisfied and supplied by
tesrtimony entirely equivalent.

France.

(1778.)

.Art. XXV . To the end that all manner of dissensions and quarrels may be avoided
ancl prevented, on one side and the other, it is agreed that in case either of the parties
hereto should be engaged in war, the ships and vessels belonging to the subjects or
people of the other ally must be furnished with sea-letters or passports, expressing
the name, property, and bulk of the ship, as also the name and place of habitation of
the master or commander of the said ship, that it may appear thereby that the ship
really and truly belongs to the subjects of one of the parties, which passport shall be
made out and granted according to the form annexed to this treaty ; they shall like-
wise be recaUed every year, that is, if the ship happens to return home within the
space of a year. It is likoMrise agreed that such ships being laden are to be provided
not only with passports as above mentioned, but also with certificates, containing th«
Bsveral particulars of the cargo, the place whence the ship sailed, and whither she i»
bouDdj that so it may be known whether any forbidden or contraband goods be or
board the same ; which certificate shall be made out by the officers of the place whence
the Bbip set sail, in the accustomed form ; and if any one shall think it fit or advisable
to express in the said certificates the x>crson to whom the goods on board belong, he
may freely do so.

(1600.)

AsT. XVI. The merchant ships belonging to the citizens of either of the contracting
Parties, which shall be bound to a port of the enemy of one of the parties, and con-
Mrning whose voyage and the articles of their cargo there shall be Just grounds of
■Qspicion, shall be obliged to exhibit, as well upon the high seas as in the ports or
'(^^ not only their passports, but likewise their certificates, showing that their
P'ods are not of the quality of those which are specified to be contraband in the
tiiirteenth article of the present convention.

As to the termination of these treaties, see supra, $$ lS7a, 148^, 248.

Guatemala.

(1849.)

AsT. XXI. To avoid all kind of vexation and abuse in the examination of the pa-
P^ relating to the ownership of the vessels belonging to the citizens of the two con-
tracting parties, they have agreed, and do agree, that in case one of them should be
^S^fed in war, the ships and vessels belonging to the citizens of the other must be
'dished with sea-letters or passports expressing the name, property, and bulk of the
^^ip> as also the name and place of habitation of the master or commander of said
^^ttel, in order that it may thereby appear that the ship really and truly belongs to
^^0 citizens of one of the parties. They have likewise agreed that such ships, being
'^on, besides the said sea-letters or passports, shall also be provided with certificates
<^Dtaining the several particulars of the cargo and the place whence the ship sailed,
^ that it may be known whether any forbidden or contraband goods be on board the
^me; which certificates shall be made out by the officers of the place whence the
^^p sailed, in the accustomed form ; without which requisites said vessel may be de-
nned to be a4jadged by the competent tribnnal, and may be declared legal prizA,
^leas the said defect shall be satisfied or supplied by testimony entirely equivalent.

This treaty terminated Nov. 4, 1874 ; see supra, $ I37a.

605

§ 410.] SHIPS^ PAPERS AND SEA-LETTERS. \CBAF. XXIL

Hakoter.

(1840.)

Abt. II. The priyileges secured by the present article to the veasels of the respect-
ive high contracting parties shall only extend to sach as are built wHhin their re-
spective territories, or lawfiQly condemned as prize of war, or adjudged to befor-
£Bited for a breach of the mnnicipal laws of either of the parties, and belonging
wholly to their citizens or subjects respectlTely, and of which the master, officers,
and two-tbirds of the crew shall consist of the citizens or subjects of the country to
which the vessel belongs.

(1846.)

Abt. v. The privileges secured by the present treaty to the respective vessels of the
high contracting parties shall only extend to such as are built within their respect-
ive territories, or lawfully condemned as prize of war, or adjudged to be forfeited
for a breach of the municipal laws of either of the high contracting parties, and beloog-
ing wholly to their citizens or subjects.

It is further stipulated that vessels of the Kingdom of Hanover may select their
crews from any of the states of the Qermanio Confederation, provided that the mss^
ter of each be a subject of the Kingdom of Hanover.

Hanover was absorbed in Germany in 1866. See 9upra, $ 137a.

Hakssatic Rbpubucs.

(1827.)

Abt. IV. In consideration of the limited extent of the territories of the Republics of
Lubeok, Bremen, and Hamburg, and of the intimate connection of trade and nsvigar
tion subsisting between these Republics, it is hereby stipulated and agreed, that any
vessel which shall be owned exclusively by a citizen or citizens of any or either of
them, and of which the master shall also be a citizen of any or either of them, luid
provided three-fourths of the crew shall be citizens or subjects of any or either of the
said Republics, or of any or either of the states of the Confederation of QeimMioy,
such vessel, so owned and navigated, shall, for all the purposes of this coDventioBf
be taken to be and considered as a vessel belonging to Lubeck, Bremen, or Hambuig*

See, as to absorption in (Germany, supra, $ 137a.

Hayti.
(1864.)

Art. XXIII. To avoid all kind of vexation and abuse in the examination of tbe
papers relating to the ownership of the Tessels belonging to the citizens of tbe caO'
tracting parties, it Is hereby agreed that when one party shall be engaged in ^^i
and the other party shall be neutral, the vessels of the neutral party shall be fnrniflbw
with passports, that it may appear thereby that they really belong to citizens of tbe
neutral party. These passports shall be valid for any number of voyages, but ah*"
be renewed every year.

If the vessels are laden, in addition to the passports above named they shall be pi^
Tided with certificates, in due form, made out by the officers of tbe place whence they
sailed, so that it may be known whether they carry any contraband goods. And u
it shall not appear from the said certificates that there are contraband goods on boaivt
the vessels shall be permitted to proceed on their voyage. If it shall appear fironith«
certificates that there are contraband goods on board any such Tcssel, and the eon*
niauder pf the same shall offer to deliver them up, that offer shall be accepted sn^ *
receipt for the same shall be given, and the vessel shall be at liberty to parsne ber

696

CHAP. XXII.] EiaHT OF UNEEGI8TEEED SHIP TO FLAG. [§ 410.

Yoysige nDless the qnantity of contraband goocU be greater than can be conveniently
reccf ived on board the ship-of-war or privateer, in which case, as in all other cases of
Jast detention, the vessel shall be carried to the nearest safe and conyenient port for
the delivery of the same.

Xn case any vessel shall not be furnished with such passport or certificates as are
above required for the same, snch case may be examined by a proper Judge or tribunal;
and if it shall appear from other documents or proofs, admissible by the usage of na-
tioos, that the vessel belongs to citizens or subjects of the neutral party, it shall not be
confiscated, but shall be released with her cargo (contraband goods excepted), and
be permitted to proceed on her voyage.

Italy.

(1871.)

Abt. Xyn. All vessels sailing under the flag of the United States, and furnished
with sach papers aa their laws require, shall be regarded in Italy aa vessels of the
United States, and reciprocally, all vessels sailini; under the flag of Italy, and fur-
niahed with the papers which the laws of Italy require, shall be regarded in the
United States as Italian vessels.

MJBCKLENBUBChSCHWXRIN.
(1847.)

AfiT. y. The privileges secured by the present treaty to the respective vessels of the
high contracting parties shall. only extend to such as are built within their respective
^^tories, or lawfully condemned as prizes of war, or a^Jndged to be forfeited for a
breach of the municipal laws of either of the high contracting parties, and belong-
ii^g wholly to their subjects or citizens.

It is farther stipulated that vessels of the Qrand Duchy of Mecklenburg-;Schwerin
^7 select their crews from any of the states of the Germanic Confederation, provided
^t the master of each be a subject of the Grand Duchy of Meoklenbnrg-6ehwerin.

As to absorption in Germany, see «iipra, $ 137a.

Mexico.

(1831.)

Art. XXIII. To avoid ail kinds of vexation and abuse in the examination of the
P*P«rs relating to the ownership of vessels belonging to the citizens of the two con-
acting parties, they have agreed, and do agree, that in case one of them should be
^ogaged in war, the vensels belonging to the citizens of the other must be furnished
^*Jh wa-letters or passports, expressing the name, property, and bulk of the vessel,
And also the name and place of habitation of the master or commander of said ves-
^^ iu order that it may thereti.v appear that the said vessel really and truly belongs
^^ the citizens of one of the contracting parties; they have likewise agreed that such
^^saels, being laden, besides the said sea-letters or passports, shall also be provided
^tli certificates containing the several particulars of the cargo and the place whence
^9 vessel sailed, so that it may be known whether any forbidden or contraband goods
^ on boanl the same ; which certificate shall be made out by the officers of the place
^beoce the vessel sailed, in the accustomed form ; without which requisites the said
^^nel may be detained, to be acUndged by the competent tribunal, and may be de-
^^d legal prize, unless the said defect shall be satisfied or supplied by testimony
^tirely equivalent to the satisfaction of the competent tribunal.

This treaty terminated Nov. 30, 1881. See 8upra, $ 137a.

697

§ 410.] ships' papees and sea-letters. [chap. iiix.

Morocco.

(1836.)

Art. IY. A signal, or pass, shall be given to all vessels belonging to both
by which they are to be known when they meet at sea ; and if the commander of *
ship-of-war of either party shall have other ships nnder his convoy, the declantic^^ '
of the commander shall alone be sn£Scient to exempt any of them from ezaminstic

Netherlands.

(1782.)

Art. XXV. To the end that all dissension and qnarrel may be avoided and pi
vented, it has been agreed, that in case that one of the two parties happens to be
war, the vessels belonging to the ttabjects or inhabitants of the other ally shall be pi
vided with sea-letters or passports, expressing the name, the property, and the bnrd^si
of the vessel, as also the name and the place of abode of the master or commander «:»i
the said vessel, to the end that thereby it may appear that the vessel really and tiii^^
belongs to subjects or inhabitants of one of the parties ; which passports shall be diai
and distribnted according to the form annexed to this treaty; each time that
vessel shall return she should have such her passport renewed, or at least they ongiXxt
not to be of more ancient date than two years before the vessel has been returned *t»
her own country.

It has been also agreed that such vessels, being loaded, ought to be provided, not
only with the said passports or sea-letters, but also with a general passport, or wl-^h
particular passports or manifests, or other public documents^ which are ordinanlj
given to vessels outward bound in the ports from whence the vessels have set sail in
the lost place, containing a specification of the cargo, of the place from whence ^lia
vessel departed, and of that of her destination, or, instead of all these, with certifi-
cates from the magistrates or governors of cities, places, and colonies from whence
the vessel came, given in the usual form, to the end that it may be known whe^ber
there are any effects prohibited or contraband, on board the vessels, and whether tliey
are destined to be carried to an enemy's country or not ; and in case any one Jod^et
proper to express in the said documents the persons to whom the effects on board be-
long he may do it freely, without, however, being bound to do it ; and the omianoD
of such expression cannot and ought not to cause a confiscation.

As to how far this treaty continues operative see Mr. Fish, Sec. of State, to Kr.
De Westenberg, Apr. 9, 1873, quoted supraf i 137 ; and see also fvprs. i
137a. Cf» comments of Judge Story in the Amiable Isabella, 6 Wheat, 74.

(1839.)

Art. IV. The contracting parties agree to consider and treat as vessels of the United
States and of the Netherlands all such as, being furnished by the competent satbontj
with a passport or sea-letter, shall, under the then existing laws and regulsti<»u> ^
recogniaed as national vessels by the country to which they respectively belong.

New Granada.

(1846.)

Art. XXII. To avoid all kind of vexation and abuse in the examination of ^
papers relating to the ownership of the vessels belonging to the citizens of the two
contracting parties, they have agreed, and do hereby agree, that in case one of t^^
should be engaged in war, the ships and vessels belonging to the citizens of theotbtf
must be furnished with sea-letters or passports, expressing the name, property, and w^
of the ship, as alao the name and place of habitation of the master and commander ^^

698

Cri^AP. XXII.] EIGHT OP UNREaiSTEEED SHIP TO FLAG. [§ 410.

tb.^ said vessel, in order that it may thereby appear that the ship really and truly be-
Ic^-K^g^to the citizens of one of the parties ; they have likewise agreed that when such
stxi 1)8 have a cargo, they shall also be proyided, besides the said sea-letters or pass-
po^rtofWith certificates containing the several particnlars of the cargo and the place
w^lKnce the ship sailed, so that it may be known whether any forbidden or contraband
goods are on board the same ; which certificates shall be made ont by the officers of the
pls^ce whence the ship sailed, in the accustomed form ; without which requisites said
T^^uel may be detained, to be adjudged by the competent tribunal, and may be de-
cl^^ved lawful prize, unless the said defect shall be proved to be owing to accident and
eks^c^ be satisfied or supplied by testimony entirely equivalent.

See supra, $ 145.

Ottoman Empire.

(1862.)

Jkxr, X. All vessels which, according to the laws of the United States, are to b«
io^med vessels of the United States, and all vessels which, according to Ottoman
Urvrs, are to be deemed Ottoman vessels, shall, for the purposes of this treaty, be deemed
vegaela of the United States and Ottoman vessels respectively.

See as to this treaty, supra, $ 165.

Paraguay.

(1859.)

AxT. YII. All vessels which, according to the laws of the United States of America,
tre to be deemed vessels of the United States of America, and all vessels which, ao-
eording to the laws of Paraguay, are to be deemed Paraguayan vessels, shall, for the
purposes of this treaty, be deemed vessels of the United States of America and Para-
guayan vessels, respectively.

Peru.

(1870.)

Art. XXY. Both contracting parties likewise agree that when one of them shall be
cc'^ged in war the vessels of the other must be furnished with sea-letters, patents,
^i* passports, in which shall be expressed the name, burden of the vessel, and the
l^^me and place of residence of the owner and master, or captain thereof, in order that
It may appear that the vessel really and truly belongs to citizens of the said other party.
^^ is also agreed that such vessel, being laden, besides the sea-letters, patents, or pass-
P^^, shall be provided with manifests or certificates containing the particulars of the
^*^o,aDd the place where it was taken on board, so that it may be known whether
^y part of the same consists of contraband or prohibited articles ; which certificate
'^l be made out in the accustomed form by the authorities of the port whence the
^^Mel sailed ; without which requisites the vessel may be detained, to be adjudged
^y the competent tribunals, and may be declared good and legal prize, unless it shall
^ proved that the said defect or omission was owning to accident, or unless it shall be
*^tisfled or supplied by testimony equivalent in the opinion of the said tribunals, for
^hich porpose there shall be allowed a reasonable length of time to procure and
P^aent it.

This treaty terminated March 31, 1886 ; see supra, $ 137a,

Prussia.

(1785.)

Abt. XIV. And in the same case where one of the parties is engaged in war with
Another power, that the vessels of the neutral party may be readily and certainly

699

§ 410.] ships' papers and sea-letters. [chap, xia-

knowD, it is agreed that they shall be provided with sea-letters or passportS; wbi
shall express the name^ the property, and burden of the vessel, as also the m
and dwelling of the tnaster ; which passports shay be made out in good and d
forms (to be settled by conventions between the parties whenever occasion shall
quire), shall be renewed as often as the vessel shall return into port, and shall be e:
hibited whensoever required, as well in the open sea as in port. But if the said vi
be under convoy of one or more vessels-of-war belonging to the neutral party,
simple declari^tion of the officer commanding the convoy, that the said vessel beloi
to the party of which he is, shall be considered as establishing the fact, and shall
lieve both parties from the trouble of further examination.

This treaty terminated Oct., 1796, by its own limitation. See wpra, i 137a.

(1799.)

Abt. XIV. To insure to the vessels of the two contracting parties the advantoig^ «f
being readily and certainly known in time of war, it is agreed that they shall be pi
vided with the sea-letters and documents hereafter specified :

1. A passport, expressing the name, the property, and the burden of the vessel,
also the name and dwelling of the master, which passport shall be made out in
and due form, shall be renewed as often as the vessel shall return into port, and ah^H
be exhibited whensoever required, as well in the open sea as in port. But if the
sel be under convoy of one or more vessels-of-war, belonging to the neutral party,
simple declaration of the officer commanding the convoy, that the sajd vessel htHoKM.^
to the party of which he is, shall be considered as establishing the fact, and shall x«-
lieve both parties from the trouble of further examination.

As to this clause, see comments by Judge Story in the Amiable IsabeQ^r ^
Wheat., 72.

As their production ought to be exacted only when one of the contracting partl«*
shall be at war, and as their exhibition ought to have no other object than to pr<rv«
the neutrality of the vessel, its cargo, and company, they shall not be deemed abso-
lutely necessary on board such vessels belonging to the neutral party as shall hA^e
sailed from its ports before or within three months after the Government shall hMrs
been informed of the state of war in which the belligerent party shall be engaged. lo
the interval, in default of these specific documents, the neutrality of the vessel ibmj
be established by such other evidence as the tribunals authorized to Judge of tbe
may deem sufficient.

Terminated by limitation June 22, 1810 ; see 9upra, $$ 137a, 149,

Sak Salvadob.

(1870.) f^

Art. XXII. To avoid all kinds of vexation and abuse in the examination of the p»p0B |^
relating to the ownership of the vessels belonging to the citizens of the two oontriet*
ing parties, they have agreed, and do hereby agree, that in case one of them shooldl)*
engaged in war, the ships and vessels belonging to the citizens of the other moft^
furnished with sea-letters or passports expressing the name, property, and hvXk ^
the ship, as also the name and place of habitation of the master and commaiider «
the said vessel, in order that it may thereby appear that the ship really and tnly ^
longs to the citizens of one of the parties. They have likewise agreed that wheo t^*
shjps have a cargo, they shall also be provided, besides the said sea-letters or paail^^
with certificates containing the several particulars of the cargo and tbe place wb^o^
the ship sailed, so that it may be known whether any forbidden or contraband ff'^
are on board the same ; which certificates shall be made out by the offioen of ^
place whence the ship sailed, in the accustomed form ; without which reqoisitei'^

700

l] right of unregistered ship to flag. [§ 410.

e detained to be adjudged by the competent tribunal, and may be de-
I prize, unless the said defect shall be proved to be owing to accident^
satisfied or supplied by testimony entirely equivalent.

me provision is in treaty of 1850.

Spain.

(1795.)

[. To the end that all manner of dissensions and quarrels may be
prevented on one side and the other, it is agreed, that in case either of
ereto should be engaged in a war, the ships and vessels belonging to the
dople of the other party must be furnished with sea-letters or passports,
le name, property, and bulk of the ship, as also the name and place of
r the master or commander of the said ship, that it may appear thereby
> really and truly belongs to the subjects of one of the parties, which
1 be made out and granted according to the form annexed to this treaty,
kewise be recalled every year, that is, if the ship happens to return home
pace of a year.

ise agreed that such ships, being laden, are to be provided not only with
above mentioned, but also >vith certificates, containing the several par-
bie cargo, the place whence the ship sailed, that so it may be known
forbidden or contraband goods be on board the same ; which certificates
e out by the ofScers of the place whence the ship sailed in the accus-
And if any one shall think it fit or advisable to express in the said cer-
person to whom the goods on board belong, he may freely do so : Wlth-
quisites they may be sent to one of the ports of the other contracting
djudged by the competent tribunal, according to what is above set forth,
sircumstances of this omission having been well examined, they shall be
be legal prizes, unless they shall give legal satisfaction of their property
r entirely equivalent.

Amiable Isabella, 6 Wheat., 1, it was held that the first clause of the

ove treaty is inoperative, from the failure of the treaty to annex the form

passport.

I as to this omission is given in its place, wpra, t 161.

Sweden.

(1783.)

ji order to avoid and prevent on both sides all disputes and discord, it ia
in case one of the parties shall be engaged in a war, the ships and vessels
» the subjects or inhabitants of the other shall be furnished with sea-let-
orts, expressing the name, property, and port of the vessel, and also the
ace of abode of the master or commander of the said vessel, in order that
by appear that the said vessel really and truly belongs to the subjects of
he other party. These passports, which shall be drawn up in good and
lall be renewed every time the vessel returns home in the course of the
klso agreed that the said vessels, when loaded, shall be provided not only
^ers, but also with certificates containing a particular account of the
(lace firom which the vessel sailed, and that of her destination, in order
be known whether they carry any of the prohibited or contraband mer-
Bntioned in the 9th article of the present treaty ; which certificates shall
b by the officers of the place from which the vessel shall depart.

701

^ 410.] ships' papers and sea-letters. [chap. XXII.

Two Sicilies.

(1855.)

Abt. IX. The national character of the vesaels of the respectiTe conntriea ahall be
recognized and admitted by each of the parties, according to its own laws and special
rules, by means of papers granted by the competent authorities to the captains or mas-
ters. And no vessels of either of the contracting parties shaU be entitled to profit by
the immunities and advantages granted in the present treaty, unless they are pro-
vided with the proper papers and certificates, as required by the regulations existing
in the respective countries, to establish their tonnage and their nationality.

This country has been absorbed in Italy. See supra, $$ 137^, 152.

Tripoli.

(1796.)

Art. IV . Proper passports are to be given to all vessels of both parties, by whieh
they are to be known. And considering the distance between the two countries, eigh
een months &om the date of this treaty shall be allowed for procuring such
Daring this interval the other papers belonging to such vessels shall be sufiloient
their protection.

See Article V I, treaty of 1805.

Tunis.

(1797.)

Art. IV. On both sides sufficient passports shall be given to vessels, that they
be known and treated as friendly ; and, considering the distance between the t
countries, a term of eighteen months is given, within which term respect shall
paid to the said passports, without requiring the oong^ or document (which,
is called testa), but after the said term the cong^ shall be presented.

Venbzxtsla.

(1836.)

Art. y. For the better understanding of the preceding article, and taking into
sideration the actual state of the commercial marine of the Republic of Venesuela, i^
has been stipulated and agreed that all vessels belonging exclusively to aoitifsn
citizens of said Republic, and whose captain is also a citizen of the same, though
constrnction or crew are or may be foreign, shall' be considered, for all the objeets
this treaty, as a Venezuelan vessel.

Repeated in Art. YIII, treaty of 1860.

Art. XXII. To avoid all kind of vexation and abuse in the examination of the
relating to the ownership of the vessels belonging to the citizens of the two oontrae
ing parties, they have agreed, and do agree, that in case one of them should be en-
gaged in war, the ships and vessels belonging to the citizens of the other must be for'
nished with sea-letters, or passports, expressing the name, property, and bulk of
ships, as' also the name and place of habitation of the master or commander of
vessel, in order that it may thereby appear that said ship ^ally and truly belongs
the citizens of one of the parties; they have likewise agreed that such ship, bein^
laden, besides the said sea-letters, or passports, shall also be provided with certifies
containing the several particulars of the cargo, and the place whence the ship sail
so that it may be known whether any forbidden or contraband goods be on board
same; which certificates shall be made out by the officers of the place whence

702

CHAP. XXII.] SIGHT OF UNREGISTERED SHIP TO FLAG. [§ 410.

ship Bailed, in the acoastomed form. Without such requisites said vessels may be
detained, to he adjudged by the competent tribunal, and may be declared legal prize,
unless the said defect shall be proved to be owing to accident, and satisfied or supplied
• by testimony entirely equivalent.

This treaty terminated by notice Jan., 1651; see wpra, $$ 137a, 165a.

(1860.)

Art. XVI. And that captures on light suspicions may be avoided, and injuries
tbeace arising prevented, it Is agreed that, when one party shall be engaged in war,
and the other party be neutral, the ships of the neutral party shall be furnished with
passports, that it may appear thereby that the ships really belong to the citizens of
tbe neutral party; they shall be valid for any number of voyages, but shall be re-
newed every year — that is, if the ship happens to return home in the space of a year.
It tlie ships are laden, they shall be provided, not only with the passports above men-
tioned, but also with certificates, so that it may be known whether they carry any con-
traband goods. No other paper shall be required, any usage or ordinance to the con-
trary notwithstanding. And if it shall not appear from the said certificates that there
are contraband goods on board, the ships shall be permitted to proceed on their voy-
age. If it shall appear from the certificates that there are contraband goods on board
ftQy such ship, and the commander of the same shall offer to deliver them up, the offer
shall be accepted, and a receipt for the same shall be given, and the ship shall be at
^berty to pursue its voyage, unless the quantity of the contraband goods be greater
than can conveniently be received on board the ship -of-war or privateer ; in which
^^^», as in all other cases of Just detention, the ship shall be carried into the nearest safe
<^(i Convenient port for the delivery of the same.

If Any ship shall not be furnished with such passport or certificates as are above re-
<l<^irQ4i for the same, such case may be examined by a proper Judge or tribunal ; and if
it aball appear from other documents or proofs, admissible by the usage of nations, that
^be abip belongs to the citizens or subjects of the neutral party, it shall not be confis-
^^^4, but shall be released with her cargo (contraband goods excepted), and be per-
°^*tted to proceed on her voyage.

^ the master of a ship, named in the passport, should happen to die, or be removed
^ ^Oy other cause, and another put in his place, the ship and cargo shall, nevertheless,
^ ^naUy secure, and the passport remain in full force.

This treaty terminated by notice, Oct. 22, 1870. See supra, $ 137a.

I ^he above clauses are cited, not as establishing as a principle of the
^^ of nations that sea letters or passports are proof of a ship's nation-
^^^y, bat as showing that they were at the time generally recognized
*^ having this effect.

y^^ Ko sea-letter or other document certifying or proving any vessel to
^ the property of a citizen of the United States shall be issned, except
T^ Vessels duly registered, or enrolled and licensed as vessels of the
?^^ited States, or to vessels which shall be wholly owned by citizens of
]^^Q tJnited States, and furnished with or entitled to sea-letters or other
'^^Btom-house documents." [Act Mar. 20, 1810. |

Bey. Stat., $ 4190.

^^^BT. 14. Marine documents consist of certificates of registry and
®^i*olment, and licenses. B. S., 4312 and 4319.

^^^BT. 15. In addition to these, sea-letters and passports for vessels
^"^y be issued through collectors, on application, to registered vessels

703

<$ 410.] ships' papers and sea-letters. [chap. XXII.

engaged in the foreign trade by sea, as an additional protection and
evidence of nationality. They are to be in all cases sarrendered with
tfliB certificate of registry at the expiration of the voyage. E. 8., 4306
and 4307.

^^Art. 93. Foreign-bailt or denationalized vessels porchased and
wholly owned by citizens of the United States, whether purchased of
belligerents or neutrals during a war to which the United States are
not a party, or in peace, of foreign owners, are entitled to the protec-
tion of the authorities and flag of the United States, as the property of
American citizens, although no register, enrolment, license, or other
marine document, prescribed by the laws of the United States, can be
lawfully issued to such vessels.

^^Art. 94. To enable, however, the owners of a vessel so circum-
stanced, to protect their rights, if molested or questioned, the collector
of the customs, though forbidden by law to grant any marine docQiDeot,
may lawfully make record of the bill of sale in his office, authenticate
its validity in form and substance, and deliver to the owner a certificate to
that effect, certifying, also, that the owner is a citizen of the United States.

''These facts, thus authenticated, if the transfer was in good faith,
entitle the vessel to protection as the lawful property of a citizen of the
United States ; and the authentication of the bill of sale and of citizen-
. ship will he prima facie proof of such good faith."

Treasary Regulation s, 1884.

In U. S. V. Bogers, 3 Sumner, 342 (1S38), it may be inferred fitom
Judge Story's opinion that a ship without proper municipal papers is
not an <' American vessel" under the statute of March 3, 1835,Bev.Statt
§ 5359, making revolt indictable. S. P. U. S. v. Jenkins, 1 N. Y. Leg.
Obs., 344. But in U. S. v. Peterson, 1 Wood, aud M., 305 (1846), it was
held by Judge Woodbury that an indictment iu such case could be sos-
tained on proof that the vessel was owned by American citizens and
sailed from an American port. And in U. S. v. Seagrist, 4 Blatcb.,420
(1860), it was held that proof of American ownership alone was suffici^Dt
<^ The objection that no documentary proof, such as a bill of sale or
registry, was put in establishing the national character .of the vessel,
cannot avail the defendants. The master testified that she was owned
in this city, by American citizens, and it was only necessary for the
prosecution to prove that she was American property to support ttie
indictment. It was not, in any way, an issue, on the trial, whether she
was entitled to the privileges of an American bottom, under our reTenne
laws. The only fact involved was whether she was American propertift
and of this there can be no doubt. (3 Kent's Com., 130, 132, 150).^

Betts, J., U. S. V, Seagrist, 4 Blatchf., 421.

*<In Marshall (p. 317) a distinction is made between a passport and ft
sea-letter. The former is defined to be a permission from a neatral to a
master of a ship to proceed on the voyage proposed, and nsoaliy coo-

704

AP. XXII.] RIGHT OF UNREGISTERED SHIP TO FLAG. [§ 410.

as bis name and residence, the name, description, and destination of
t ship, with such other matters as the practice of the place requires.
is document he describes as essentially necessary for the safety of
Ty ship. • • •

^ It has been the policy of the United States, m common with other
amercial nations, to encourage their own ships. Our navigation act
imerates and describes certain vessels, and emphatically denominates
m ships or vessels of the United States. Their distinguishing char-
eristics are that they are built, owned, and commanded by citizens
:iiis country*. They are registered with the collector and are entitled
a ceirtificate called a register. This register is of itself considered a
apetent document to prove the ship American, and would in most
es serve as a sufficient protection against dhpture. But cases occur
erein this register is not granted to vessels owned by citizens of the
ited States. The principal case is where the vessel is built out of
country. In such case the collector cannot grant a register j but it
ng i)roper and necessary that the owner should have some document
protect his property against the rapacity of cruisers on the ocean,
1 to establish his neutrality, a formula has been devised and is
kuted, called a certificate of ownership. With a view to the encour-
ng of ship-building in this country a discrimination is also made in
I duties of tonnage. Ships of the United States pay at the rate of 6
its per ton ; ships built within the United States after a certain
iod, but belonging wholly, or in part, to foreigners, 30 cents per ton ;
1 all other ships 50 cents a ton. Hence, under both heads of own-
hip and the place of building all vessels are considered, by our laws,
ler four distinct views : (1) Vessels of the United States. (2) Ves-
8 built in the United States owned by foreigners. (3) Vessels built
t of the United States owned by citizens. (4) Vessels built out of
5 United States owned by foreigners.

^^ Vessels of the first and third classes, being owned by citizens, are
titled to the protection of the Oovernment. The second and fourth
fcsses^ being owned by foreigners, cannot receive any documents which
)uld in the least protect them from capture. To encourage our own
ip-building, vessels of the United States pay but a small duty of 6
nts ; vessels built and owned here by foreigners, pay a duty of 30
Bts; and if our citizens will go into foreign countries to build, or to
irchase vessels, they are put on the same footing as foreigners, owning
reign vessels, with regard to the rate of duties, although as citizens
ey have a right to demand the protecting hand of the Government for
eir property. Hence arises the division of vessels owned by citizens
to two classes, vessels of the United States or registered vessels, and
»8els belonging to the citizens of *the United States, certificated but
>t registered. The owners of the latter description of vessels, consid-
ing this certificate of ownership as a sufficient shield for neutral prop-
ty, denominated it a sea-letter ; and it may have obtained that ap-
illation at the time our first navigation act was passed, which was in
e year 1789, some years before the letter from the Secretary of the
^easury set forth in the bill of exceptions, was written. This term
^ at a subsequent period ingrafted into our statute book, as I shall
esently show.

**In the year 1793, when a general war was kindled in Europe, the
^sident of the United States, in order that our vessels might enjoy
^ benefits stipulated by treaties and be generally protected against
^ depredations of the belligerents, ordered documents to be furnished
)ni the custom-houses to all ships and vessels belonging to citizens

S. Mis. 1G2— VOL. in 4", 705

§ 410.] ships' papers and sea-letters. LCHAl*. s.^^^

of the United States. This document is denominated in theleite^^^
the Secretary of the Treasury a sea-letter, and is the formula of tift
passport adopted in the treaties, and was given to certificated as wel"l^
to registered vessels. This was a mere Executive regulation unaut Idol-
ized by any existing statute, and so it continued until the 1st of JcB^ne,
1796, when an act was passed directing the Secretary of State to ^"Die-
pare a form which, when approved by the President, should be deeriped
the form of a passport for ships and vessels of the United States. "^She
form adopted was the same as described in the treaties. It was so c=^n-
structed in order that we might have the benefit of those trea^ ies.
The passports exhibited by the plaintififs were issued subsequea -^ to
1796, and, although conformablo to the formulas prescribed in the tixrea-
ties, they emanated from this statute. And here two remarkable cir-
cumstances occurred ; the term sea-letter in the treaties was drof^iped
in the statute, and the word passport adopted ; and the passport ^^jfos
only authorized to bo granted to registered vessels. Thi&must bK^are
been considered as a negation of the rights of the Executive heretofore
exercised of granting passports to certificated vessels. Hence, the cer-
tificate of American ownership being their only guard, this certificate
was emphatically denominated their sea-letter or protection.

' * The case before us occurred in the year 1798, two years after the
passing of the statute authorizing the granting of passports on It to
registered ships. Inconveniences having been sustained from this dis-
crimination, and certificated ships being thus deprived of so important
a document, a law was passed on the 2d day of March, 1803, and direct-
ing that every unregistered ship or vessel owned by a citizen or citizeDS
of the United States, and sailing with a sea-letter, going to any foreign
country, should be furnished with a passport, prescribed in the fiormer
act, for ships and vessels of the United States. This statute is one of
the only two that contain the term sea-letter, and that it is used here
in the sense of a certificate of ownership caunot be doubted. A pass-
port is to be granted to a vessel owned by a citizen sailing with a sea-
letter. The passport authorized by a former statute is precisely the
same with the sea-letter or passport of the treaties. If, then, by the term
sea-letter in this statute, is intended the sea-letter or passport of the
treaty, the provision is superfluous and idle, because it provides for what
already exists ; and changing the terms to the construction insisted oo by
the defendants, the statute would read thus: *That every unregistered
ship, sailing with a sea-letter, and owned by a citizen of the Cnite^
States, shall be furnished with a sea-letter,' that is, provided with what
it already possessed. The only way to escape from this absurdity «
to adopt the certificate of ownership as the true and legitimate sea-letter
But this is not all. Another statute was passed on the 14th day o^
April, 1802, where the word sea-letter is used precisely in the sense
now contended for. The statute declares that ' the second section of the
act to retain a further sum or drawback for the expenses incident to the
allowance and payment thereof, and in lieu of stamp duties or o^
bentures,' shall not be deemed to operate on unregistered ships or vessels
owned by citizens of the United States at the time of passing the said
act in those cases where such ship or vessel at that time possessed *
sea-letter or other regular document, issued from a custom-hoase of the
United States, proving such a ship or vessel to be American property*
This provision is iDtended to operate in favor of unregistered vessels
owned by citizens. And the term sea-letter is used as synonym^"*
with a regular document issued by a custom-house of the United States
to certificated vessels.

706

AP. XXII.J RIGHT OF UNREGISTERED SHIP TO FLAG. [§ 410.

*I consider, therefore, the term sea-letter, although variously under-
lod on former occasions, yet as now adopted, naturalized, and legiti-
.ted in our statute book, and its meaning perfectly defined, in the
ISO contended for by the plaintiffs. Though mentioned in certain
aties as synonymous with passports, yet by statutes subsequently
ated, the term passport is exclusively used, and the word sea-letter
nsferred and attached to a different idea. The court ought, there-
e, to have decided that the legal, technical, sea-letter, contemplated
the supreme legislature, and spoken of in our statutes, was the certifi-
e 01 ownership granted to unregistered vessels belonging to citizens
the United States.'^

Slegbt r. Hartshorne, 2 Johns. (N. Y.), 531,543. Clinton, Senator, giving
opinion of majority of court.

''The insurance was upon 'the good American ship, called the Rod-
n,' These words amount to a warranty that the ship was American,
ording to the settled construction of the phrase both in this and in the
glish courts. (1 Johns. Oas.,341 ; 2 t&iU,168; 3 Bos. & Pull., 201, 606,
>j 514, 531 ; G East's Rep., 382.) A warranty that the property is
lerican undoubtedly means that it is not only so in fact, but that it
lU be clothed with the requisite evidence of its American character,

the purpose of protection, and in reference the law of nations, under
» sanction of which the voyage in question was to be conducted. (1
ins. Cas., 305 ; 2 ibid., 148.) It was proved that the ship ,was owned
the plaintiff, and that he was an American citizen ; and, from the
e, we are to conclude that the siiip had all the papers requisite for
American vesseJ, except an American register. The case is some-
at equivocal upon that point; but this wo think to be the better
istruction of it. If she had not the documents required by our
aties, it ought to have been made a distinct, substantive ground of
ection at the trial. The case states *that the defendants' counsel
ved for a non-suit, on the ground that the vessel was warranted by

policy to be an American vessel, and that the plaintiff had pro-
ied no proof of her being such; but that, on the contrary, it appeared,
01 the testimony in the cause, that she was only a sea-letter vessel,
bout an American register.' This was an admission that she was a
-letter vessel, though the competent proof of that fact is not dis-
ced in the case, and the defendants evidently placed their motion for
onsuit on the single ground of the want of a register. If anything
J wanted to show a compliance with the warranty, except the regis-
^ it ought to have been expressly so stated. The presumption must
after verdict, and upon this case, that every objection was supplied.
> are then reduced to this single^point : Was the want of a register a
ach of the warranty ? At the time the policy was underwritten,
re were two kinds of American .vessels, the one registered, and the
er unregistered and carrying a sea-letter, or an ofQcial certificate of
aership, and both kinds were recognized by law as American ves-
J, though the former was entitled to higher privileges under the laws
Congress. (G Laws XJ. S., 72.) But in reference to the law of na-
is, and to security upon the high seas, both species of vessels were
lally entitled to protection as American proi)erty. There was no use
requiring a register for any object within the purview of the war-
ty. The want of it did not enhance the risk. ' It is a known and
iblished rule,' says Sir William Scott, in the case of the Vigilantia
Rob., 113), * that if a vessel is navigating under the pass of a foreign

707

§ 410.] ships' papers axd sea-letters. [chap. xxu.

coantry, she is considered as bearing the national character of that na-
tion nnder whose pass she sails ; she makes a part of its navigation,
and is in every respect liable to be coDsidered as a vessel of that coun-
try,' What was said by Lord Alvanley in Bearing v. Glaggett (3 Bos. &
Pull., 201) is not applicable, nor does it affect this doctrine. He con—
sidered that the warranty of a ship to be American required an AmerL —
can register, under our navigation act and the French treaty, and tha
the privilege of carrying the American flag, as a safe-conduct amonj
belligerent i)ower8, was to be denied to all ships not sailing under
compliance with that act. The act he referred to was passed in 1?
(2 Laws U. S.> 131), and declared that none but registered vessels shoulcfl^
be deemed vessels of the United States entitled to the benefits an«:^
privileges appertaining to such vessels. He was not then apprised c^
the distinction between registered and unregistered vessels, and of tk. ^
legislative recognition of the latter as American vessels, entitled
privileges in port as such, under the act of 1802. The act of 1792,
which he referred, seems, by its terms, to have left unregistered ve-
sels as alien vessels, and without the protection of the United Stat<
Whether that was or was not the condition of such vessels at that tii
is not now a material inquiry, since the vessel in question, at the tii
of the warranty, was not only American property in fact, but entitl<
by her sea-letter, under our law and under the law of nations, to the
munities of the American flag. This was equivalent to what was ternm
by Sir William Scott a national pass, and so it was considered in
court of errors, in the case of Sleght v. JBLartshorne (2 Johns. I^p., (>3S. ) j

Kent, Ch. 3., Barker o. Phccqix Ins. Co., 8 Johns. Rep., 307, 319.

^' There are two kiods of American vessels, registered and unre^
tered. The former are entitled to greater privileges within the Uni.t:^^
States than the latter ; they pay less tonnage, and the goods imported
in them pay less duties. The counsel for the defendant contended , in
the first place, that the words of the insured are to be taken most
strongly against himself, and therefore a registered vessel which is en-
titled to the highest privileges must be intended. This is pushing the
matter too far. Where the words are doubtful they are to be taken moat
strongly against the speaker. But not so where they are sufficientJjr
clear. There being two kinds of American bottoms, if 1 engage that a
certain vessel is an American bottom, generally, my engagement is
complied with if she is an American bottom of either kind, unless it can
be shown that such construction involves consequences at variance witA
the object of the agreement. We are then to consider the object of this
warranty. It was to insure to the underwriters that protection towhicb
neutrals are entitled. Now, if this object is answered without a re/jis-
ter, and if the use of a register is principally to obtain privileges of a
domestic nature, there is no ground for asserting that the warranty con-
templated a registered vessel exclusively. But if, as has been argued
by the defendants, an unregistered vessel, though owned by citizens of
the United States, was at the time of this insurance unprotected by tbe
Government and deprived of those documents to which foreign Dations
look, as proof of neutrality, then, indeed, there will be strong reason for
saying that the warranty required a registered vessel. It is necessary
therefore, to examine what was the situation of a vessel sailing under a
sea-letter at the date of this insurance. A good deal will depend on
ascertaining with precision the nature of a sea-letter, concerning ^h^c?
there has been a considerable difl'erence of opinion, occasioned pri"^'

708

HAP. XXII.] RIGHT OF UNREGISTERED SHIP TO FLAG. [§ 410.

sdly, as it appears to me, by confonndiDg it with a different instrnment,
illed a certificate of ownership. Ttis provided by tbe 25th article of
ir treaty with France that the ships and vessels of the people of both
itions shall be fnmished with sea-letters or passports. From this ex-
ession it seems that a sea-letter and a passport were considered as the
me. I presume that during the Eevolutionary War our vessels were
TDished with this document according to treaty. During the peace
at succeeded, it is probable that it was omitted, as there was no dan-
r of capture. But when war broke out again between France and
Inland, it became a matter of importance that our vessels should be
documented as to afford them protection in their navigation. Ac-
rdingly we find that the attention of our Government was very early
pned to this subject. In a circular letter from the Secretary of the
easary to the several collectors, of the 13th of May, 1793, he men-
►ns the necessity of furnishing * all ships and vessels belonging to cit-
rus of the United States with sea-letters, for their more perfect iden-
Lcation and security.' This letter was accompanied with sea-letters ac-
rding to the form prescribed by the Government, and not materially
Gferent from that -which had been used in the Revolutionary War. It
under the hand of the President and seal of the Onited States, coun-
rsigned by the Secretary of State, and contains the name and burden
the vessel, with the nature of her cargo, the name of her master, and
le voyage on which she is bound, with permission to depart and pro-
sed on the voyage. It contains also a declaration that oath has been
ado by the master, proving the vessel to be the property of citizens
■ the United States only. Underneath the signature of the Secretary
' State is a certificate, signed by the collector of the port from whence
le vessel sails, that oath has been made before him by the master
lat the said vessel is owned by citizens of the United States only. This
^Ttificate is addressed to all foreign kings and potentates, and prays
L^at the said master may be received and treated with kindness and
iendship, etc. This sea-letter being furnished to all vessels, regis-
red or unregistered, belonging to citizens of the United States, af-
x^ed the same protection to both. It was a passport within the
eaning of our treaties with France, Spain, Holland, etc., nor have
B any reason to suppose that its efQcacy was called in quostion by
th0t of them. Lord Alvanley appears, therefore, to have been mis-
%en when he said, in the case of Baring, etc., v. Olaggett (3 Bos. &
till., 213), that our unregistered vessels were not protected from capt-
'© by our treaty with France. It is true by the registering act of the
Bt of December, 1792, it is declared that none other than registered
^esels ' should be denominated and deemed vessels of the United
ates entitled to the benefits and privileges appertaining to such
f^els.' But those benefits and privileges were of a municipal nature,
Lth which foreign powers had no concern. On the 1st of June, 1796,
i act was passed directing the Secretary of State, with the approba-
>ii of the President, to prepare a form of passport for ships and
'^els of the United States going to foreign countries. And by a sup-
ement to this act, passed the second of March, 1803, every unregis-
i*cd ship or vessel, owned by citizens of the United States and sailing
th a sea-letter, going to any foreign country, is entitled to one of the
•ssports created by the original law. Hence it has been concluded
' the counsel for the defendants that unregistered vessels were un-
ovided with a passport during the interval between the passing of
B acts of June, 1796, and March, 1803 ; that they carried in fact noth-

^ 410.] ships' papers and sea-letters. [chap. XXII.

ing bnt a certificate of owuersbip, which obtained, iii common par-
lance, tho name of sea-letter, bnt did not operate as a passport. Bnt in
this I think they are mistaken. During all that period sea-letters (which
were passports) were granted to unregistered vessels, and the passports
under the act of June, 1796, were what are commonly called Mediter-
ranean passports, rendered necessary by our treaty with tbe Dey of Al-
giers, on the 5th of September, 1795, by the fourth article of which eight-
een months were allowed for furnishing the ships of the United States
with passports. The sea-letters which operated as passports among:
the European nations are printed in the English, French, Spanish, aod
Dutch languages. But the Mediterranean passports are in the English
language only, ornamented with an engraving and indented at tbe top,
so that the Algerines might easily distinguish them by the eye, and
by an examination of the indented part. Mr. Dallas' argument has
thrown light upon the subject of passports and sea-letters. From a care-
ful examination of the acts and papers to which he referred, 1 am sat-
isfied that his view of the subject was correct. The result of all this
is, that when the insurance in question was made, the brig Eosina was
furnished with all the documents which an American nnregistered ves
sel ought to have, and with all the documents necessary to protect her
against the European belligerents. As to tho Algerines, we were at
peace with them. At any rate it is not to be supposed that danperfrom
that quarter could have been apprehended in a voyage from New Or-
leans to Philadelphia, and therefore it is entitled to no consideration
in the construction of the warranty. Upon the whole I am of opinion
that the warranty was complied with, and therefore judgment should be
entered for the plaintiff.

Tilghman, C. J., in GriflSth r. Ids. Co., 5 Binn. (Pa.), 4&4,4G6ir. (1813).

"It is the usage of American vessels to take sea-letters in voyag^
to Europe, but to the West Indies and coastwise, they most generally
sail with a certificate only."

Hoffman, arguendo, in Skght r. Rbinelander, 1 Jobus., 197.

"The title to a ship acquired by purchase passes by writing. A bij*
of sale js the true and proper muniment of title to a ship, and one whiw*
the maritime courts of all nations will look for, and in their oij^in^fy
practice require. In Scotland a written conveyance of proi)erty JJ*
ships has, by custom, become essential; and in England it is made sio-
solutely necessary by statute with regard to British subjects. Posses-
sion of a ship and acts of ownership will, in this, as in other cases of
property, be presumptive evidence of title, without the aid of docfl-
mcntary proof, and will stand good until that presumption is destroyer*
by contrary proof; and a sale and delivery of a ship without any bHl^^^;
sale, writing, or instrument will be good at law as between the parties.

3 Kent Com., 130, citing The Sisters, 5 C. Rob., 155; 1 Mason, 139; Weston r.
Pennimau, 1 ibid., 306 ; 2 ibid., 4;55 ; Obi v. Eagle Ina. Co., 4 ibid,, 390; Coded*
Commerce, art. 195. Robertson r. French, 4 East, 130; Sutton f.Boc»i*
Taant., 302; Taggard r. Loring, 16 Mass., 336; Wendover r.HoglelK^"'
7 Johns., 308; Bixby v. Franklin Ins. Co., 8 Pick., 86. Abbott on 6b'P'
113; The Amelio, 6 Wall,, 18, 30; Rice «. McLaren, 42 Mo., 157, K^i ^^'
Mahonr. Davidson, 12 Minn., 357, 369,370; The Active, 01cott,2e6; F<»°*
taine v. Beers, 19 Ala., 722.

As to policy of navigation laws, see Reeve's Hist, of Law of Shippin/f ; ^ ^^
Com. 139.

710

[AP. XXII.] BIGHT OF UNEEGISTERED SHIP TO FLAG. [§ 410.

"The pass or passport, and the sea-letter (sea-brief), as Eoding, in
; Marine Lexicon, additionally names it, seems to be a term of doubt-
l and ambiguous interpretation in the law ; for the sea-brief, or sea-
ter, according to Marshall (p. 317), is a difierent document from the
ssport, relating, as he says, to the nature and quantity of the cargo,
3 place from whence it comes, and its destination ; whereas the pass-
rt, according to the same authority, is more particularly intended to
>tect the ship and to sanction the voyage proposed ; while from the
thor^ text above it will be perceived that the pass there spoken of
tends equally to the protection of ship and cargo, and is, from the
ereiice to Eoding, indiscriminately termed passport or sea-letter. In
L- treaties with France, Holland, and Spain the terms are used synony-
►usly, and there relate solely to the vessel. Yet in Johns. (N. Y.)
ports, volume 1, page 192, and volume 2, page 531, where ' a vessel
^ warranted to sail under a sea-letter without a register, it was sue-
isfully contended that a certificate of property, which relates only to
& cargo, was in its commercial import a sea-letter, when, at the time
the trial of the cause, such papers as a sea-letter and a certificate of
operty appear to have been distinctly known and used, the certifi-
te of ownership to prove the property in regard to the custom-house,
id the sea-letter to evince the nationality of the vessel and to protect
le cargo from being detained by a belligerent. This perplexity seems
> arise from acts of Congress subsequent to the above treaties, in
hich the term sea-letter is mostly abandoned and the word passport
dopted ; and in one of the only two in which the term is used, the act
fthe second of March, 1803, supplementary to an act providing pass-
orts for the ships and vessels of the United States, it cannot be
oubted that it is not to be understood in the sense in which it is ap-
lied in the above treaties ; for, by that act, vessels owned by a citizen
* the United States, and sailing with sea-letters, are to be furnished
ith passports of the form prescribed by the act, to which this is a sup-
enoent. Per curiam in the above case: *The passport authorized by
© former act is precisely the same with the sea-letter or passport of
© treaties. If, then, by the term sea-letter in this statute is intended
6 Bea-letter or x)as6port of the treaty, the provision is superfluous and
le, because it provides for what already exists. The only way to es-
pe from this absurdity is to adopt the certificate of ownership as the
^e and legitimate sea-letter. Though mentioned in certain treaties as
rnonymous with passport, yet, by statutes subsequently created, the
'Hu passport is exclusively used, and the word sea-letter transferred
Qd attached to a different idea.' See also an act of Congress of the 14th
^ April, 1802, in which the word sea-letter is used in the same sense.

'* What understanding is, then, to prevail with regard to the distinct
&d relative meaning of the terms passport, sea-letter, and certificate
^ property f We are inclined to believe that the passport and sea-
^tter are essentially the same, intended to evidence the nationality of
he vessel and protect the cargo from belligerents, while the certificate
^^ property difi'ers from it in deriving its importance and validity from
he usage of the custom-house alone, not being prescribed by any law.

*' The act of Congress of 1796 directs the Secretary of State to pre-
pare a form of a passport for the ships and vessels of the United States,
t is probable that the term passport was here intended to signify the
'^me paper which had been spoken of in our treaties with foreign pow-
'^, and which is indiscriminately termed sea-letter or passport; for the

711

§10. J SniPS' PAPERS AND SEA-LETTERS. [CHAP. X

Secretary, in tbe execution of this duty, caUed the papers, which he
warded to the customhouses, sea-letters. In the act of 1803 unre^ j
tered vessels, sailing with a sea-letter, are directed to be furnished ^
application with a passport. The word, when used in this statu. ^
means, as we conceive, a Mediterranean pass, a paper entirely of «i]
mestic creation, and differing essentially from those papers required,
be on board by the general law of nations. The object of the law-
1803 then becomes manifest, viz, to extend to vessels foreign built, K:^
owned in this country, the benefit of being protected under a Medi*^^
ranean passport. But the use of the same word to express in the Q^
act a sea-letter and in the second a Mediterranean pass has created %ii,
obscurity which has prevailed upon this subject.

"We subjoin an extract from a circular of the Hon. A. J. Dallas^ of
February 25, 1815, then Secretary of the Treasury, to the collectors of
customs of the United States, in which these documents among others
are referred to, and our view of their relation to each other partly sua-
tained :

"*1. The certificate of registry, — ^This document is created by our own
laws, and belongs exclusively to vessels American built and owned, or
such particular vessels as are expressly adopted by the registering act
It is an instrument which the vessel must carry, in order to entitle her
to the privileges of vessels of the United States.

" * 2. TJie sea-letter. — This document is an instrument of the maritime
law of nations, and under the denomination of a passport, as well as of a
sea-letter, treaties sometimes require it to be carried by the merchant
vessels belonging to the contracting parties. It is an instrument which
gives no privilege as to duties of import ; but simply declares the
American ownership, and recommends the vessel to the comity of na-
tions. Yessels are under no legal obligations to carry a sea-letter; and
indeed it is only necessary for neutral vessels in a time of war.

*'<3. The Mediterranean passport — This instrument having been de-
scribed under the general denomination of "passport^ in some aft»
of Congress has been occasionally confounded with the sea-letter which
has also been denominated a passport. The form was introdaced fioon
after the treaty with Algiers, which called for the instrument ; and i^
is intended as a protection for American vessels against the Barbai?
Powers."'

Jacobson's Sea Laws, 66 ; note by WiUiaxn Frick, the editor.

*'^ The passport J sea-hriefj seorletterj or pass. — ^This is acertificate grantrf
by authority of the neutral state, giving permission to the master of
the ship to proceed on the voyage proposed, and declaring that while
on such voyage the ship is under the protection of the neutral state.
It is indispensable to the safety of a neutral ship ; and no vessel is per-
mitted to disown the national character therein ascribed to her."

Arnonld's Marine Ins. (1872), 569.

'^ On entend par lettre marine la passe de mer."

Ortolan Regies do Mer, i, 195.

■

. It is not competent for one sovereign to determine as to the ©oni'
cipal regularity or adequacy of the ship's papers issued by another
Kovereign. It is enough if such papers are in the shape of a protection

712

p. XXII.] RIGHT OF UNREGISTERED SHIP TO FLAG. [«S 410.

assport, aDcL emanate from the sovereign of the owners of the ship,
rom one of liis subalterns.

EaltenborD, GruDdsatze des praktischeu Earopiiischen Seerechts, Berlin, 1851,

$$ 45^; Lewis, Deutsche Seerecht, Leipsic, 1877, 1,14.
Wharton's Law Diet. (London, 1883), qnoting 1 Marsli. on Ins., c. 9, s. 6, speaks-

of passports, sea briefs, and sea letters as papers ''required by the law of

nations to be on board' neutral ships."

If we look to the origin of the mercantile flag, it would appear ta
regulation of the municipal law of indiyidual states, and not to be
Qstitution of the general maritime law. The passport or sea-letter,
le case may be, is the formal voucher of the ship's national charac-
The passport purports to be a requisition on the part of the Gov-
nent of a state to suffer the vessel to pass freely with her company,,
lengers, goods, and merchandise without any hindrance, seizure, or
^station as being owned by citizens or subjects of said state. ^ The
paper,' says Sir William Scott, ' which we usually look for, as proof
roperty, is the pass.' The same learned judge elsewhere observes:
18 a known and well-established rule, with respect to a vessel, that
le is navigating under the pass of a foreign country, she is consid-
. as bearing the national character of that nation under whoso pass
sails. She makes a part of its navigation, and is in every respect
le to be considered as a vessel of that country.' The pass or sea-
5r, was until very recent times indispensable for the security of a
1^1 ship from molestation by belligerent cruisers, and it was the only
3r to which any respect was paid by the cruisers of the Barbary
BS, as warranting the vessel to be within 'the protection of their re-
itive treaty engagements with the European powers. If a vessel
amished with a pass or sea-letter, it is immaterial whether she has
mercantile flag on board or not. The latter by itself is not a cri-
m of the national character of the owners of the vessel."

Twiss, Law of Nations, as to war (2d ed..), 172.

> this passage is appended the following note :
The best account of the passport is given by D'Abreu (part i, ch.
whojustly observes that it covers sometimes the cargo as well a&
ship, but that it invariably named the ship, its build, the captain,
his residence. D'Abreu also gives an account pf the sea-letter,,
ih he describes as being in the same form as the pass. The differ-
I (between them would seem to consist in this, that whilst the pass
med in the name of a sovereign power or state, the searletter is
5d in the name of the civil authorities of the port from which the
el is fitted out. The form of a sea-letter is annexed to the treaty
le Pyrenees (A. D. 1650), under which it was provided that free ships
dd make free goods. It is termed 4itenD salvi conductus,' and the
3 and effect of it is thus described in the XYII Article of the treaty
f: 'Ex quibus non solum de suis mercibus impositis, sed etiam
>co domicilii et habitationis, ut et de nomine tarn Domini et magis-
lavis, quam navigii ipsius constare queat : quo per duo hsecce me-
sognoscatur, an merces vehant de contrebande, et sufficienter tam
usditate quam de Domino et magistro dicti navigii constet. Bis
is salvi conductus et certificationibus plena fides habebitur.' In the
ity of Copenhagen concluded July 11, 1670, between Great Britain
Denmark^ the sea-letter is termed a certificate ; and it is provided

713

§ 410.] ships' papers and sea-letters. [chap, kx

that the ships of either confederate shall carry letters of passport skj
a certificate, of which the forms are set forth in the body of the treat
This sea-letter or certificate extended to the Cdrgo."

'' Les nations maritimes sont libres de fixer les conditions auxqnelle
elles reconnaissent la nationality des uavires Strangers dans les ea.iu
dependant de > leur territoire ; mais les 6gards quo les nations se dci
vent entre elles exigent que ces conditions ne soient pas de nature a
entraver la libre navigation ct le commerce maritime,

" En* tout cas le navire doit dtre mis h meme de fournir la preave de
sa nationality an moyen de documents authentiqucs on de certains sigzi^^s
distinctifs permettant do verifier i\ premifere vue ^ quelle nation 11 ii^p-
partient.

'^Le pavilion est le signe apparent dn car£^ct^re national d'an Davxre.
Ghaque IiStat a des coulenrs particuH&res, sous lesqneUes navignent s^
nutionaux et qui ne peuvent 6tre arbor^es sans sa permission.

" Se servir du pavilion d'un ]2tat Stranger sans I'autorisation de cet
£tat est an acte qui est consid6r6 comme une infraction au droit inter-
national, comme une manoeuvre fraudnleuse et attentatoire 4 Phonaeor
de l'£tat Stranger. I/lStat dont on a usurps abusivement le pavilion
et celui k regard duquel on se sert d'un faux pavilion ont Tun etrautre
le droit d'exiger la punition des coupables et, suivant les circonstanees,
de les punir eux-m6mes.

<< Le pavilion ne suffit pas s\ lui seul prouver la nationality da nam;
il offre trop de facilit^s ^ Tabus et aux usurpations. Pour avoir on
moyeu de contr61e plus certain les nations maritimes sont convennes
que tout navire marchand doit 6tre pourvu de papiers de bord ou letttes
de mer, que le capitaine est tenue de produire chaque fois qa'ilenest
16gitimement requis. Ces papiers de bord consistent le plus ordinaire-
ment dans un acte indiquant le signalement du navire, ses dimensions, |
sou nom, des details sur sa construction, dans un passeport oa pateote |
de navigation, Facte autorisant le navire ^ porter le pavilion national, j
un r61e de I'^quipage mentionnant les noms et la nationality des mate- |
lots, et un acte d'achat ou de propri6t6. Du reste ces papiers donnent |
lieu A une grande diversity, d'usages entre les nations; leur nombrejlenr
nature et leur libell6 varient d'ailleurs d> Tinflni d'uu pays & rantre? et ;
^ont r^gis par les codes ou les lois int^rieures de chaque ^tat." ^

Calvo, droit international, tome ii, $} 873^ 874, 875.

D'Abreu (Pressas de Mar, Ist ed., 1746), 18 ff.^ enumerates nine doj^
iiments that ought to be found on board a merchant ship upon the higfl
tseas :

1. £1 passaporte (tlio pasax)OTt).

2. Las letras do mar (sea-letter);

3. £1 libro derrater (the Look of charts).

4. La certificacion 6 patente de sanidad (the bill of bcaltU).

5. La pertenencia del navio (bill of sale or certiGcato of ownership),
C. El libro de sobordo.

7. La carta-partida (the cbarter-party).

8. El conocimento (the bill of lading).

9. La factura (the invoice).

"El primer instrumento cou que debe uavegar todo navio mexcaD^j
es cl passaporte, y no es otra cosa, — ^^ '*" ^-^ -^^ ««i^Af-ino. oe

<!apitan, 6 dueiio del navio, para que

714

, que una licencia de el soheranM^
lue este naveguc, el qua! se concwCj

HAP. XXIL] right of UNREGISTERED SHIP TO FLAG. [^S 410.

cias veces por tiempo limitado, y otras sin limitacion. Se uombra en

el puerto & donde es el destino, y se refieren por mayor las mercadn-
as, que conduce ; bien, que otras veces^ ni se seiiala tiempo, ni lugar
L carjs^a; pero siempre el capitan, y navio, y la naturaleza, domicilio 6
'sidencia de aquel.

*^Este instnunento es tan precisso y necessario para la navep^acion,
16 el navio, que se halldre sin^l, puede ser legitimamente apressado;
ixno consta del Artfculo G de la Ordinanza de Oorso, en estas terminos :
3an de ser de buena pressa todos los navios pertenecientes d enemigos.
Ids mandados por piratas corsarios, y otra gente, qne corri«?e la mar
D Despacho de algun Principe, ni Estado Soberano.^ Guya disposicion
mforma muclio con lo que observaban los Bomanos en los passaportes
3 que nsaban, para comerciar libre, y seguramente, y que registraban
damente los agentea in rebus; ^2) porque sin los Despachos, que 11a-
abau ^Evectiones 6 Tractatorias} (3) no se podia conducir cosa alguna;
aanque algnnos Interpretes al Codigo son de sentir, que estos Despa-
IDS eran con los que so a^sistia d los Gorreos, para que les diessen
8 Gaballos necessaries d su viage ; y otros los entienden de los que se
braban d los ministros, para el carrnage, y utensilios, que se les man-
aba ddr en sus jornadas, no tenemos duda en que dicbos Despachos,
Bben extenderse d los passaportes dados para el comercio do las mer-
iderias ; (4) fuera de que en qualquiera inteligencia, que se les quiera
dr, es constante, que quanto se comerciare, ba de ser ajustado d las
rdenes, y Despacbos, que previenen las Leyes ; de suerte, que los efec-
)s que se encontraren en navios mercantiles que uavegaran sin passa-
orte, ban ser de buena Pressa.

^^El segundo instrumento es, las Letras de Mar, por las quales debe
onstdr no solamente de la carga del navio, sino tambien de el lugar
e su habitacion, residencia, y nombre, assi del maestre y patr6n, como
el navio mismo, para que de este modo se pueda reconocer, si Ueva
iercaderias de contravando, d cuyas Letras de Mar se debe ddr entera
^ y credito. Este instrumento lo creemos tambien absoluta 6 indis-
ensablemente necesario para la navegacion, pues el Articulo 17 de
^atado de los Pirineos, despues de equipararlo con los passaportes, pre-
iene que se lleve; y al fin de dicho Tratado, se encuentra su formu-
^rio, que es el siguiente :

**'A todos los que las presentes vieren, nuestros los regidores, con-
tiles y magistrados de la villa de , liaz6mos saber d quien tocare,

ae N , maestre del navio , pareci6 ante nos, y debaxo de jura-

lento solemne declar6, que el navio, llamado N , de porte de

^neladas, poco mas, 6 menos, del qual es maestre al presente, es navio
^nc^s; y deseando nosotros, quo dicbo maestre de navio sea ayu-
^do en sus negocios, pedimos en general y en particular d todas las
-rsonas, que encontraren dicbo navio, y d todos los lugares donde
^gare con sus mercaderlas, tengan por agradable de admitirle favora-
'emente, tratarle bien, y recibirle en sus puertos, babias y dominos,
Permitirle fuera en sus riveras, mediante el pagamento de derecbos
^ peage y los demds acostumbrados, dexandole navegar, passar, frc-
^entar y negociar alii, 6 en qualesqniera otras partes, que le pare-
^re d proposito, cosa que nosotros reconoceremos gratamente, en fee
^ lo qual havemos firmado las presentes, y selladolas con el sello de
^estra villa.' Aunque el Articulo de los Pirineos arriba citado, pre-
^rtbe indispensablemente que todo navio mercantii, que navegue,
^yga las Letras de Mar, no creemos, sin embargo, que por la falta
^ este instrumento, deba reputarse el navio por de buena Pressa,

715

§ 410.] ships' papers and sea-letters. [chap. xxn.

siempre que trayga el passaporte do sii Soberano, pucs equivaleesteen
substancia & las Letras do Mar."

D'Abreu, Pressas de Mar, 18 jT-

Exhibit A. — Form of Mediterranean letter in use in the Department of State when Mr.

Jefferion teas Secretary.

[Cut of fall-rigged sbip, and ander it view of a harbor.]
Bt thb Pbssidekt of tub United States of America.

To all persons whom these may concern :

Suffer the , roaster or commander, of the burthen of tons or there-
abouts, mounted with guns, navigated with — — men, to pass with her com- j

pany, passengers, goods, and merchandise, without any hindrance, seiznre, or mot

lestation, the said appearing by good testimony to belong to one or moredf

the citizens of the United States, and to him or them only. I

Given under my hand and the seal of the United States of America, the — M

of , in the year of our Lord— thousand hundred and . 1

By the President : -

Number — . ,

State of ,

Secretary of Steie^

District of ^

Countersigned by

As to sea-letters, see more fully infra, App., $ 410.
710

JAMES A. GARFIELt
pk£sidknt dss etats-unis d'

Qu'iL 80IT NOTOIRE que faof
miasion out ^t^ accord^es ^

maltre oa oo
du navire appel^
de la ville de
de la capacity

JAMES A. GARFIELD,

>KXT VAX DE VEUEENIGDK 8TAATBM
VAN AMERICA.

A touB ceux qui les pr^Mnte$ verr i^ degeeneny die deeze teegen woordiy

zullenj 8alui :
s TE WEKTBN, dat by deezeu vry-
en permissie gegeeven
m Schipper ea

ebber ran bet achip (of vaartmgV

la
cie
oa.
moi
cier^
port
YoyB\
»nne|
do rait
En •,
$ign^ le
toeau dk
tresignef

CHAPTER XXIII.

lETTEES E06AT0E7.

PllACTlCE AS TO SUCH LETTERS.

$ AIM,

5tters rogatory, in their general relations, are discussed in Wharton's
a. of Laws, § 723. In this chapter will bo given notes of rulings in
relation by the executive and judicial departments of the Govern-
t of the United States.

le certificate and seal of the British minister resident in Hanover
>t a proper authentication of the proceedings of an officer of that
I try in taking depositions. * It is not in any way connected with the
'tioDs of the minister, and his certificate and seal can only authen-
e those acts which are appropriate to his office.

Stein V. BowmaD, 13 Pet., 209.

16 circuit court will issue letters rogatory for the purpose of obtain-
testimony when the Oovernment of the place where the evidence
be obtained will not permit a commission to be executed.

l^elflon v. U. S., 1 Pet. C. C, 235.

In this case a form of^such letters is given. See also Mexico v. De Arangois, 5
Duer, 634 ; Kuchliiig v. Leberman, 9 Phila., 160.

commission was issued by a judge in Cuba to the Spanish consul
ew York to take testimony to be used in a criminal prosecution for
idling, and the consul thereupon applied to the district court for a
iinons to compel the witness to appear and testify. It was ruled
b the court had no power to issue the summons asked for, the only
visions made by Congress on the subject of enforcing the giving of
imony in judicial proceedings pending in a foreign country being
56 found in the acts of 2 March, 1855 (10 Stat., 630), and of 3 March,
5 (12 Stat, 769 ; Eev. Stat., 4071), neither of which acts applies to
case proposed. .

Matter of the Spanish Consui, 1 Benedipt, 225.

Letters rogatory for the purpose of taking the testimony of persons
ling in the United States, which may be material in suits pending
le courts of foreign countries, are frequently sent to this Depart-
t, usually with a note from the minister for foreign affairs of the
gn country or from its diplomatic representative here, requesting
the business may be attended to. It is not, however, the province
le Department of State to dispose of matters of this kind. Fre-
tly witnesses w hose testimony is sought reside in places far from
city, rendering it impracticable to have the testimon}- taken within
:ime at which it is required in order to make it available.

717

§ 413.] LETTEHS ROGATOBY. [CHAP. HIIL

" It is, therefore, deemed advisable to issue this cirenlar, to whichare
appended the acts of Cougress regnlating the taking of testimony in
such cases. Other information upon the subject, which will be found
useful to i)ersons interested, is contained in the following—

*' DiBECTiONS. — Both circuit and district courts of the United States
are held in each of the States at the following points :

'< In Alabama, at Huntsville, Birmingham, Montgomery, and Mobile;
in Arkansas, at Little Bock ; in California, at San Francisco and Los
Angeles 5 in Colorado, at Denver, Pueblo, and Del Norte ; in Connec-
ticut, at Few Haven and Hartford ; in Delaware, at Wilmington; in
Florida, at Tallahassee, Pensacola, Jacksonville, Key West, and Tampa;
in Georgia, at Atlanta, Savannah, and Macon ; in Illinois, at Chicago,
Springfield, and Cairo ; in Indiana, at New Albany, Evansville, Indian-
apolis, and Fort Wayne ; in Iowa, at Dubuque, Fort Dodge, Sioux City,
Keokuk, Council Bluffs, and Des Moines ; in Kansas, at Fort Scott,
Leavenworth, and Topeka; in Kentuck3', ai: Frankfort, CovingtoD,
Louisville, and Paducah ; in Louisiana, at New Orleans, Opelonsa^
Alexandria, Shreveport, and Monroe ; in 5laine, at Portland ; in Mary-
land, at Baltimore ; in Massaclinsetts, at Boston; in Michigan, at Pore
Huron, Detroit, Grand Ea])ids, ami Marquette ; in Minnesota, at Saint
Paul ; in Mississippi, at Aberdeen, Oxford, and Jackson ; in Missouri,
at Saint Louis, Jefferson City, and Kansas City; in Nebraska, at Lin-
coln and Omaha; in Nevada, at Carson City; in New Hampshire, at
Portsmouth and Concord ; in New Jersey, at Trenton^ in New York,
at Canandaigua, Albany, Syracuse, Utica, New York, and Brookl}Ti ; in
North Carolina, at lialeigh, Greensborough, Statesville, Asheville, and
Charlotte; in Ohio, at Cleveland, Toledo, Cincinnati, and Colambus:
in Oregon, at Portland ; in Pennsylvania, at Philadelphia, Erie, Pitts-
burg, Williamsport, and Scranton; iu Uhode Island, at Newport and
Providence; in South Carolina, at Charleston and Columbia; in Ten-
nessee, at Knoxville, Chattanooga, Nashville, Jackson, and Memphis;
in Texas, at Graham, Dallas, Waco, Galveston, Tyler, Jefferson, Aus-
tin, San Antonio, Brownsville, and El Paso ; in Vermont, at Burling-
ton, Windsor, and Rutland; in Virginia, at Richmond, Alexandriii,
Norfolk, Lynchburgh, Abingdon, Harrisonburgh, and Danville; iu Weal
Virginia, circuit court at Parkersburg, district court at Wheelingt
Clarksburgh, and Charleston ; in Wisconsin, at Milwaukee, Oshkosh,
Madison, Eau Claire, and La Crosse.

"In some of the States, district courts are held at other ]K)intsin
addition to those above specified.

" The clerks of the courts of the United States are authorized to take
depositions, and may be designated as commissioners for that purpo^
in letters rogatory, which, when returned, are to be used in tbe coait«
of foreign countries.

*^The letters rogatory may be addressed to the judge of eitber tne

circuit court of the United States for the State of , or the district

court of the United States for the district of (naming the State),

praying the judge of that court to name and appoint the commissioner;
or such letters may be addressed to the commissioner directly."

'*The letter or package should in all cases be directed to the clerk ^^
the district or circuit court to which the letters rogatory are addressed.
The clerk's office is at the place where the court holds its session.^

Mr. Fish, Sec. of State, circular to diplomatic and consalar officen, Ap^* ^^
1872; Consalar Regulations, 1681, Appendix No. IV.

718

HAP. XXIII. J PRACTICE AS TO SUCH LETTERS. [§ 413.

n act to faciUtato the taking of depositioDS within the United States, to be used in the courts of
other countries, and for other parpeses. Approved March 3, 1863.

Be it enacted by the Senate atUl House of Eepresentativee of the United States of America
Congress assembled. That the testimony of any witness residing within the United
AtcBf to be used in any snit for the recovery of money or property depending in any
'nrt in any foreign country with which the United States are at peace, and in which
e Government of such foreign country shall be a party or shall have an interest,
aj be obtained to be used in such suit. If a commission or letters rogatory to take
ch testimony shall have been issued from the court in which said suit is pending,
I producing the same before the district judge of any district where said witness
sides or shall be found, and on due proof being made to such Judge that the testi-
Doy of any witness is material to the party desiring the same, such judge shall
rae a summons to such witness, requiring him to appear before the officer or com-
issioner named in such commission or letters rogatory, to testify in such suit. Snch
mmons shall specify the time and place at which such witness is required to attend,
liich place shall be within one hundred miles of the place where said witness resides
shall be served with said summons.

Sic. 2. And be it further enacted. That if any person shall refuse or neglect to appear
the time and place mentioned in the summons issued, in accordance with this act,
iff upon his appearance, he shall refuse to testify, he shall be liable to the same
nalties as would be incurred for a like offense on the trial of a suit in the district
Qit of the United States.

6ec. 3. And be it further enacted, That every witness who shall appear and testify,
manner aforesaid* shall be allowed and shall receive from the party at whose in-
ince he shall have been summoned, the same fees and mileage as are allowed to
tnesses in suits depending in the district courts of the United States.
Skc. 4. And be it further enacted. That whenever any commission or letters rogatory
med to take the testimony of any witness in a foreign country, in any suit in which
e United States are parties or have an interest, shall have been executed by the
art or the commissioner to whom the same shall have been directed, the same shall
returned by such court or commissioner to the minister or consul of the United
fttes nearest the place where said letters or commission shall have been executed,
10, on receiving the same, shall indorse thereon a certificate, stating the time and
U)e, TV hen and where the same was received ; and that the said deposition is in the
recondition as when he received the same; and he shall thereupon transmit the
id letters or commission, so executed and certified, by mail to the clerk of the court
)m which the same issued, in the manner in which his official dispatches are trans-
itted to the Government. And the testimony of witnesses so, as aforesaid, taken
d returned shall be read as evidence on the trial of the suit in which the same shall
Te been taken, without objection as to the method of retorning the same.

>ct to prevent ciis-trials in the district and oironlt conrts of the United States in certain cases.

Approved March 2, 1855.

» • * * • • •

>^. 2. And be it further enacted, That where letters rogatory shall have be [been]
^^essed from any court of a foreign country to any circuit court of the United
^8, and a United States commissioner designated by said circuit court to make
Examination of witnesses in said letters mentioned, said commissioner shall be
H>wered to compel the witnesses to appear and depose in the same manner as to
Ear and testify in court.

See letter of Mr. Fish, Sec. of State, to Mr. Stetson, Nov. 15, 1872. MSS. Dom.
Let. See further as to practice in such cases, Mr. Seward, Sec. of State,
to Mr. Gana, Mar. 16, 18C7; Mr. Seward to Mr. Fontecilla, Oct. 12, 1868.
MSS. Notes, Chili.

719

§413. J LETTERS ROGATORY. [CHAP. XIIII.

"Beferriug to Mr. Bancroft's dispatch, 'So. 599, inclosiog a copy of a
cote addressed to him by Mr. von Billow in reference to an order issued
out of the district court for the southern district of Kew York, naming
certain consuls of the United States to take testimony in au action
therein pending in behalf of the Government, against the firm of S. N.
Wolff & Co., and to your dispatch, So, 9, inclosing a second note from
Mr. von Billow on the same subject, I now inclose you a copy of a letter
addressed to this Department by the Attorney-General, with » copy of
a letter from Mr. Bliss, the United States district attorney at Xew York,
in reference to the question, and a copy of the order complained ot

'' It appears to this Department that the Grerman Government bas
labored under a serious misapprehension in the matter.

" The minister of foreign affairs objects to the taking of the desired
testimony by the consuls, under the commission in question, on the
ground that it is an exercise of functions by consular officers in the
German Empire not warranted by Article IX of the German-American
convention of December 11, 1871.

^^ Under our system of jurisprudence, where the testimony of persons
beyond the limits of the United States is desired by either party to an
action pending in the courts, the same is taken on commission. For
this purpose application is made to the court in which the action is
pending, and when granted, a person is agreed on by the parties, or
ciam<'(l by the court, to take the evidence, and an order is entered in
the court to that effect.

^^ Questions are prepared by each party, which are propounded to the
witnesses by the person so named, or an oral examination is sometimes
provided for, at which both parties are represented by counsel.

<< The answers to the questions are taken, and the evidence thus taken
is certified by the commission named, and returned to the court to be
read at the trial.

^< No claim is made that a consul of the United States, as snch, has,
by treaty or by convention, the right to take such testimony. It is no
part of his official duty, nor does he act as consul in so doing. He acts
in the matter as a private individual, at the request of the parties or
the appointment of the court. The Government in no case takes any
part in these appointments ; they are made by the courts in the inde-
pendent discharge of their functions as a matter of practice, and with
the sole view of the administration of justice and the ascertainment of
the facts of the case at issue between the parties litigant. The person
named may be a subject of the German Empire, an American citizen^
or may belong to any other nationality. He is selected in each partic-
ular case as an individual, who, from character, residence, or other
qualification, will fairly propound the questions and certify the an-
swers. His services are purely ministerial and entirely voluntary. Be
has no power to compel the attendance of witnesses or to punish them
for contempt. So authority is given except to put questions and certify

720

AP. XXIII. J PRACTICE AS TO SUCH LETTERS. [§ 413.

swers, and no other is claimed for him. The same proceedings are
:en and the same rule applies in every case, whoever the parties to
i action may be. The fact that the Government is a party or has an
erest in the action in no respect alters the rule. It is a proceeding
the interest of justice to arrive at the truth between disputed facts
in action pending in the court.

'The testimony in any particular case may be necessary to save a pri-
:e person, whether German or American, from penalties to which he
aid otherwise be liable. On the other hand, it may be required in the
srest of good government here or elsewhere to punish attempted
dds upon the public revenue.

'These are objects of common interest to all commercial powers,
ich the Government of Germany from its well-known character will
the first to appreciate and to vindicate.

' Upon an examination of the particular order in question, it will be
n that it provides for the taking of testimony for the benefit of either
ty, and from this fact and from the letter of the district attorney it
1 be found to be an order made for the benefit of both parties, and
ained by consent or upon their joint application.
^ So far as any objection may be made to the execution of this particu-
commission, therefore, by the branch house of the defendants in Ger-
Jiy, it appears that the order was made on the solicitation or consent
the house in Kew York. Any obstacle thrown in the way of the
dug of this testimony by the German Government amounts to a re-
tal to permit two parties to ascertain the truth to be used for their
itaal benefit in a legal proceeding.

4t is confidently believed that an explanation of the matter will be
tJiely satisfactory to the German Government.
^The United States has no desire to obtain for its consuls in Germany
f authority or functions except such as rightly belong to them ; and
the same time this Government will be extremely reluctant to admit
it a person becoming a consul of the United States is thereby ex-
ded from privileges which are allowed to unofficial persons, or bo-
nes disqualified for the discharge of duties to his fellow-citizens which
y be performed by any other reputable person, of whatever nation-
ty, but which are likely to be asked of him by reason of his official
ntion, making him more likely than others to be known to those need-
; SQch services.

Tou will fully explain this matter to the minister of foreign affairs,
1 it is confidently hoped and expected that on this full explanation
objection to the action of the consuls in question will be withdrawn,
1 that the German Government will view it as an act of comity, and
aid of the proper administration of government and justice, to facili-
e the ascertainment of the facts in the case now at issue between
is Government and the ^lessrs. Wolff. A continued objection or ob.

S. Mis. 1G2— VOL. Ill 40 721

§413.] LETTERS EOGATORY. [CHAP. XXIU.

stmction to such ascertaiDment would be the cause of very serious re-
gret to this Govenunent.

<< You may, in your discretion, read and give a copy of this dispatch, to
this point, to the minister of foreign affairs, for the purpose of eiplana-
tion.

<< Under the circumstances set out in your No. 9, your action in iDtima^
ing to the several consuls the difficulties which might arise from action
on their part until the matter should be adjusted, was a wise precau-
tion, and is approved.

^^ Should the German Government withdraw the objections now raised,
yon will so inform the several consuls, and inform this Department bj
telegraph. You will also instruct the consuls, in executing any such
commission, to assume no authority as consuls, and to b^ careM in their
action to give as little offense to the German Government and to its sub-
jects as iwssible."

Mr. Fish, Sec. of State, to Mr. N. Fish, Ang. 18, 1874. MSB. Inst., Germ.; For.
Rel., 1874.

flndoaiuM in the abore instruction.]

Department of Jusncs,
Wtuhington, Augut 4, 187i

Sib : 12eferriiig to your letter of the 20th ultimo, inclosing a dispatch from the miniittf

of the United States at Berlin, and other papers^ I now have the honor to iiicIoae,ftf

yonr information, a copy of a letter addressed to this Department, under dste of tb^

27th ultimo, by the United States attorney for the southern district of New York, 9^

a copy of the dedimua jiotestatem issued by the district court of the United Stottf^'

that district in the case of the United States v. S. N. Wolff et aZ., of Nddheim, aathor-

izing United States consuls and their representatiyes to take testimony in ttidctf^

Very respectfully, your obedient servant,

Obo. H. WnxuKBt

Aitorneg-Gt*^
Hon. Hamilton Fish,

Secretary of State.

Office of the Distbict Attobmet of the United States

FOB THE SOUTHEBN DiSTBICT OF NeW TOBS,

New York, JsZjf «7, ^^

8ib: I beic to acknowledge the receipt of your favor of 21s^ transmitting so^^^
letter of the Secretary of State and a copy of a dispatch addressed by the mini^^^
the United States at Berlin to the State Department, the several papers relsting ^'^
ord«r to take testimony issued by the district court for this district.

In reply to your inquiry, I beg to say that the United States has a rait peooist
against the firm of Wolff &, Co., to recover about 175,000 penalties for alleged lUi^
valuation in the importation of goods to this port. In that suit both parties doui*
procure the testimony of persons residing in various places in Europe. It wtf ^
fore agreed between the respective attorneys that an order should be entered, allowiBS
the testimony to be taken orally at places named. It has long been the prs<^'
in this district to designate as commissioners to take testimony in foreign psrt>
persons who, from time to time, happen to be the consuls of the United Stslei »
places where the testimony is to be taken, and in this case the parties agreed tbst tu*
course should be followed. The consuls are not, in such case, supposed to set *i^^

722

aAP. XXIII.] PRACTICE AS TO SUCH LETTERS. [§ 413.

Is, bat to act as commiBsioners, a^eed upon by the parties, having, of coarse, no
("wer to compel the attendance of witnesses, nnless the head authorities choose to
ant it, which some countries do and others do not.

I inclose a copy of the order issued in this case. You will perceive that it is an
tkoritif to the persons named to take the testimony. Nothing is required of them, as
sms to he supposed^ and they can, of course, refuse to act. As they are paid for their
rvices, they are, however, usually quite willing to act.

I may be permitted to add that, though the order is, in form, issued upon my motion,
was really issued by consent of parties.
Tour obedient servant,

Gkorge Buss,
United States Attorney,
Hon. Geo. H. Williams,

Attomey-Qeneral,

OBDER OF THE COURT.

At a stated term of the United States district court for the southern district of New
«k, held at the United States court building in the city of New York, on the 13th
•y of April, 1874: Present, the honorable Samnel Blatchford, the district judge.

ED States i
LFF et ah 1

IB United States

r.
N. Wolff

On reading and filing affidavit of plaintiff^s attorney and notice of motion, with
oof of due service thereof on attorneys /for the defendant, Alphonse de Biesthal,
ho only has appeared herein, George Bliss, esq., appearing for the plaintiff, and W.

A. Faller, esq., for the defendant, Alphonse de Riesthal.

It is, on motion of George Bliss, esq., United States attorney, ordered that a dedimu$
>kitatem be issued in this cause out of this court, directed to the United States con-
il and to such deputy or representative of said consul as may be authorized by him
^ act in his place and stead, at the following-named places, respectively, viz : To E.
> Beauchamp, United States consul at Aiz-la-Chapelle (Aachen), Germany, and his
)puty or representative; to W. P. Webster, United States consul at Frankfort-on-the-
Ain, and his deputy or representative ; to H. Ereisman, United States consul at Ber-
Qy Prussia, and his deputy or representative; to J. A. Stuart, United States consul
t Leipzic, Germany, and his deputy or representative; to Daniel MoM. Gregg, United
tates consul at Prague, Austria, and his deputy or representative ; to S. H. M. Byers,
United States consul at Zurich, Switzerland, and his deputy or representative ; to
famine the following-named persons under oath as witnesses herein, viz : A. Amberg
&d the person or persons composing the firm of A. Hirsch d& Co., of Cassel, Germany;
i. K. Wolff, of Neidheim, near Cassel aforesaid; the person or persons composing the
^ of Ltittger Brothers, of Petersmtlhle, near Solingen, Germany; Carl Aufermann,
'f Losenbach, near Lledensoheid, Germany ; Y. T. Pospiohel, of Wiesenthal, Bohemia ;
^M the person or persons composing the firm of Leopold Czech & Co., of Haida, Bo-
hemia; the person or persons comprising the firm of E. Ereimer d& Co., Berlin, Pms-
^ft; W. Wagner, Jr., of Plattenberg, Switzerland, and T. L. Lurman, and J. W. Maes,
^ Iserlohn, Germany.

It is farther ordered that the examination above provided for shall take place dur-
^gthe months of July and August, 1874, and at such times within said months as is
leieinafter designated.

It IB further ordered that either party to this action shall have liberty to examine
iot only the witnesses herein named, but any other witnesses that either party may
tare to examine at the aforesaid places of Aix-la Chapelle, Frankfort-on-the-Main,
^lin, Leipzic, Prague, or Zurich, before either of the persons herein authorized to

723

§413.]' LETTERS EOGATORY. [CHAP. XXffl.

take testimony; proyided, howeyer, that the names of said witnesses and their pIuM
of residence shall be give to the attorney of the opposite side in New York, befon
Jane 6, 1874, or such notice be given in Europe to the opposite counsel acting thers
for either party to this action, in either of the aforesaid places of Ais-la-Chapelle,
Frankfort-on-the-Main, Berlin, Leipzic, Prague, or Zurich, where such other witnesNs
are to be examined, two days before snch examination.

It is further ordered, that prior to June 6, 1874, the attorneys for the respective
parties shall give notice in New York, each to the other, of the names and Earopean
address, for the last week in June, 1874, of the counsel for the respective parties who
are to take testimony nnder this commission.

It is further ordered that the examination of wiinesses shall be had at tbe Mott-
ing places, in the following order, and not otherwise, viz : First at Aix-la^hapelle,
next at Frankfort-on-the-Main, next at Berlin, next at Leipzic, next at Prague, and
last at Zurich; that four weeks shall elapse between the examination of witnesses at
Prague and Zurich ; that the examination shall commence at Aix-la-Chapelle on tlie
6th day of July, 1874, or within two days thereafter; and that no examination shall
be had of witnesses at any place after the examination has been finished at that place,
or the examination of witnesses commenced at another place.

It is further ordered that the counsel for the plaintiff shall have with him at aoy
and all said examinations of said witnesses, or either of them, all the original inyoioes
mentioned in the declaration herein, or copies or duplicates thereof, and wbich are is
the possession of the plaintiff, and that counsel for defendant shall have full and free
inspection thereof, and liberty to take copies of the same.

It is further ordered that all directions herein contained as to time, place, order, and
manner of examination of said witnesses may be changed or modified by the written
consent of the counsel for the respective parties in Europe or in Now York.

It is further ordered that the examination of all witnesses nnder this commission
shall be oral, and taken by question and answer, in the nsnal manner of taking onl
depositions, by examination, cross-examination, and redirect examination ; that tbe
testimony given nnder such examination shall be reduced to writing, signed by tbe
witnesses, and certified by the commissioners, respectively, and by them transmitted
by mail to the clerk of this court at the city of New York, unless otherwise mutnallr
agreed upon by said counsel for both parties.

It is further ordered that all testimony taken nnder the coumiission provided for
herein sball be taken subject to all legal objections at the trial of this action.

Sam. BtJLTCHFORD-

" Your No. 33, under date of the 20th of October last, narratingyoar
interview with Mr. von Billow at the foreign office in relation to the ob-
jection interposed by the German Government to allowing consuls of the
United States to serve as commissioners to take testimony to be nsed
in judicial proceedings pending in this country, has been received.

" Your representations to the minister are approved.

"Although Mr. von Billow stated to you that instructions on the sub-
ject had been sent to Mr. von Schlozer a fortnight prior to your inter-
view and conversation, nothing has been heard from that geutlemaniD
this connection. The objection interposed by the German GovermneBt
to the obtaining of testimony in Germany to be used in the coartsof
this country is much to be regretted, and as appears from the admission
made to you by Mr. von Billow, the Germans whose interests led them
to resist the taking of the testimony, and who invoked the interposition
of their Government to prevent it, are now known to have been in the

724

IP. XXIII ] PRACTICE AS TO SUCH LETTERS. [§413.

)Dg. It would have been quite as satisfactory to this Government
1 the reply of the German Government on a subject presented to their
isideiation, through the representative of this Government at Berlin,
in communicated also through him, and, as is shown, some delay
ich has occurred might have been avoided.

'As Mr. von Schlozer has not communicated the answer of his Grov-
iment, it will not be amiss that you inform Mr. von Billow that we
) still without any reply. You will call his attention to the fact that
) suit in which the testimony is sought is one in which the Govern*
Dt of the United States is itself a party.

4 inclose herewith copies of existing statutes (which are embodied in
ttioDs 4071, 4072, 4073, and 4074 of the Be vised Statutes of the United
ites) enacted by this Government to insure to other powers the op-
rtanity of obtainiDg testimony in this country in any suit for the re-
^ery of money or property depending in any court in any foreign
iDtry with which the United States are at peace, and in which the
tvemment of such foreign country shall be a party or shall have an
«re8t.

^Iq these enactments, which have long been in force in this country,
8 Government has manifested its friendship to other powers, as well
its desire to aid in the administration of justice in all foreign countries
bh which it may be at peace.

'It is hoped that the answer of the German Government may soon be
nmunicated, and that it will be such as shall evince a willingness to
^iprocate the very liberal and efficient provisions made in this country
enable Germany, in case of need, to obtain the evidence of witnesses
this country in any suit in which that Government may be interested
d that the facilities which Mr. von Bulow says that Germany will
brd in this direction may prove ample and etticacious."

Mr. Fish, Sec. of State, to Mr. Davia, Not. 14, 1874. MSS. Inst., Germ.;
For. Rel., 1874. See further, Mr. Fish to Mr. Davis, Apr. 7, 1875.

'' On the 16th of November last I had the honor to receive your note
the 13th of that month, communicating an instruction which the im-
rial foreign office had directed to you, in reference to the objections
uch had been interposed by the German Government to the obtain-
i of the testimony of certain parties resident in Germany, to be used
a Bttit pending in this country in behalf of the Government of the
dted States against the German house of S. N. Wolff & Go.
''Although the instruction amounts to a courteous but practical denial
the customary practice under the legal system of the United States
the facilities whereby their courts are accustomed to seek the evi-
nce on which they are to determine the contested rights submitted
them in the administration of justice, still I am bound to recognize
6 right of a sovereign state to deny such facilities, within its limits, to
6 courts of another state. At the same time it is hoped that, on a

12S

§ 413.] LETTERS ROGATORY. [CHAP. XXIII

review of the qaestioD, it will be perceived that uo invasiou of the sov
ereign rights of a Government, no harm to its dignity, and no incon
venience to its citizens or to its officers or its tribanal, can result irow
an extension of comity that will allow to the jadicial system prevailing
in this country and in England the exercise of that mode of seeking the
facts involved in a litigation pending in their ccmrts which the experi
ence of a long series of years has shown to be the mcNre convenient^ the
less expensive, and wholly free from interference with the supreme
rights of a state.

<* The instruction, substantially but not perfectly, presents the sys-
tem prevailing in this country, derived mainly from the <common-law'
system of England, for the attainment of the facts and the truth of any
case to be judicially decided. The Government with us lends its aid
so far as it can do it practically, to the eliciting of the facts of every cas^
with respect to which its courts are called upon to determine and ac^
minister justice ; and believing that a full knowledge of the truth, ^
. contested between litigants, is essential to the administration of jnstii^a
it grants as an act of courtesy, as well as of justice, the power to cok3
pel the attendance of witnesses and requires them to testify under oa»^
in any suit for the recovery of money or property depending in slm2
court in any foreign country with which the United States are at peao
and in which the Government of such foreign country shall be a p&z^
or shall have an interest

<< It allows the testimony to be taken, either under a commission or
letters rogatory, as the judicial procedure of such foreign country, or
its policy, may dictate and prescribe, in its own forms of the adminis-
tration or pursuit of justice, and either case it affords to such friendly
Government the means whereby to obtain the evidence which is soagiit
from witnesses within its limits. Its own citizens, equally with lesi
dent aliens, are made amenable to its process, in aid of sach friendlj
power seeking to recover what it may consider to be due to it, in monej
or property, by the evidence which those citizens or aliens may be sip-
posed able to furnish.

<< I subjoin hereto an extract from the statutes of the United States
on this point.

" These facilities have been voluntarily extended by the United States
to the Governments with which it is in amity, in full knowledge, aod
because of the fact so correctly and forcibly presented in the dispatdi
of Mr. von Billow, that they cannot be enjoyed except under sachluD*
itations and restrictions as may be provided by treaty stipulatioosor
(as in the case with the United States) are prescribed by the legal sfs
tern in force in each country. They are a voluntary contribution on
the part of the United States to the comity of nations and to the ^i-
ministration of justice, and toward the attainment of the rights of ^^^i?
other power with which they are at peace.

720

CHAP. XXIII.] PRACTICE AS TO SUCH LETTERS. [§ 413.

^' The facilities thus given to friendly powers, in suits in which snch
I>oi;rers are parties, or are interested, are, by the judicial practice of
tlie several states, generally or largely accorded also in suits in which
ioclividnals, citizens, or subjects of such states are parties, and have
be^n and are constantly availed of by Germans as well as individuals
of" other nationalities.

^< With regard to the proceedings in the case in which the United
StiAtes were endeavoring to obtain testimony in a suit wherein it was
6^>eking to recover a large amount supposed to have been fraudulently
iv^thheld by a Oerman house, "the commission was addressed to consuls,
not in their official capacity as consuls, but because of their being known
SbXkA of the assurance of a probability of their presence at or near the
l^oiDts where the witnesses were residing. They had no authority to
s^t^t^empt the^ compulsory attendance of any witness. The commission
WSU3 issued with the expressed assent of the counsel representing the de-
fendants in the suit; there was no attempt to extend what are termed
' t^he exceptional privileges granted to consuls of th« United States by
tlie consular treaty between Germany and America,' nor ^ to limit the
operation of the laws' of the country in which the commission was to
be executed ; and the assent of the attorneys of the defendants to the
issuing of the commission, and the provision for taking testimony on
behalf of the defendants, and for the presence of the counsel of the par-
ties if desired, anticipated the objection stated by Mr. von Billow that
German law allows the parties to be represented at the examination.

'^ I observe that Mr. von BUlow remarks that they < objected not so
much to the taking of sworn testimony by American consuls in their
official capacity, as on general principles to the actual examination of
^tnesses by American commissioners within the limits of the German
Empire.'

^* I have stated that there was no desire or attempt to take testimony
^ by American consuls in their official capacity.'

'^ Mr. von Billow states that, in the present case, ^ now pending in the
southern district court at Kew York, the German courts, in whose dis-
tricts the persons to be examined ns witnesses reside, will immedi-
ately comply with any request that may be addressed to them by the
foresaid American court and American commissioners, or any other
^^ly authorized representative of the parties will be at liberty to be
presp.Dt at all times fixed by the competent German courts, and to put
to the witnesses, through the presiding judges, any questions to which
^^ answer under oath may be important or desirable for the decision of
the court at New York.'

'^This is confined to one pending suit, whereas the previously cited
objection was ^ on general principles to the actual examination of wit-
nesses by American commissioners,' and makes it desirable to know
Whether the objection 'on general principles' will be enforced in case
^he administration of justice in the courts of the United States shall ,

T2T

§ 413.]

LETTERS ROGATORY.

^1«

in some other case, find itself iu need of the evidence of witnesses re-
siding in Germany.

<< The intelligent minister of Germany to the United States is aware of
the multitadinons cases arising from the intimate connnercial and social
relations happily existing between the two coantries, and of the conse-
quent frequency of cases in which the testimony of parties residing io
either country is essential to the determination of rights in the other,
and will therefore appreciate the importance of an understanding of
the limitations which either state may impose upon the other in the
attainment of legal evidence. He is aware, also, of the prnmftnnm^^~
and of the facility with which legal evidence is furnished by the Uni' ""^
States in response to the frequent requests made therefor by all forei
powers, to determine the fact, the date, or the circumstances of tb
death of parties in the United States, to determine successions or oth<
questions of interest to the citizens or subjects of such x>owers, or to
powers themselves. The agents and ofBcers of the Government
Ireely and cheerfUlfy employed to obtain the evidence desired, which
furnished as an act of international comity, and in no instance has
application been obstructed on the ground that it must be made throa^A
the courts of this country, or has any internal legal system been inter
posed as an objection to the request made.

<< If the German Government decide that in no other form than tfaa^
of ' requisitions,' analogous to the cumbrous forms known to the commoo
law of England rs ^ letters rogatory ' (which are recognized by the laws
of the United States because of their being known to the laws and the
practice of some other countries), will it allow the evidence of witnesses
residing in the German Empire to be taken for use in suits jiendiogio
the United States, the latter do not contest the right to impose socb
limitation.

*^ It seems, however, to the United States that such limitation is io
restraint of the administration of justice, by a constrained subjectionrf
the proceedings in the courts of one country to the judicial system of
another perhaps at entire variance, in its forms of procedure, and espe-
cially in its mode of examining witnesses ; and that the principle so
aptly stated by Mr. von Billow that ^ the courts of all the countries aro
bound to assist each other in the execution of law and the attainoeDt
of justice,' is but partially enforced when the legal system of oneeofi^
limits and confines the search for only the truth, in the ndministratioD
of justice under the judicial system of another, to the technical forinali'
ties of its own.

'^ The experience of the United States, since its existence as an indO'
X>endcnt power, of the practical working of the system which prevsilB
in this country, and also in England, of affording every facility fortbe
obtaining of the evidence of witnesses when without the actual juri**
diction of the court in which is pending thesuit wherein their testimony
is importiint, by means of commissions rather than by letters rogatotyr

^ly

CHAP. XXm.] PEACTICE AS TO SUCH LETTERS. [§ 413.

attests tho greater convenience of the former, and the entire absence of
any resulting danger to the parties litigant, to the witnesses, or to the
state. The evidence thus obtained is taken in the form suited to the
jndieial system of the court which is to pass upon it, while much ex-
pense and delay is generally avoided.

^^ It is hoped that the Oerman Government may see fit to relax (what
is recognized as within the abstract right of every Oovemmelkit) the rigid
mle of confining the courts of the United States, in search of testimony
needed from witnesses in Germany, to its own tribunals,, as the only
cliannel through which it is to be obtained.

^^ Should it, however, be desired to adhere to the course indicated by

Mr. Ton BUlow, the courts in the United States should be apprised of

tlie rigidness of the mle, which will (as in the case which has given rise

to this correspondence) be apt to arrest the course of justice, owing to

tbe unadvised adoption of the system of commissions, which obtain so

generally, and which has hitherto been supposed to be free from the

objections of any Government.''

Mr. Fishy Sec. of State, to Mr. Schluzer, Doc. 0, 1674. MSS. Notes, Germany.
For Rel., 1S75.

^^ WLile under our practice, both in the Federal and State courts, it is

certainly true that a commission is the usual, perhaps the universal,

Queans in general use, of obtaining tho testimony of a witness in a

I foreiji^ country, it is probably too broad a statement to say that none

'. of oar courts can make use of letters rogatory. Such question may, in

I Q^any cases, be regulated by statute in the States, but it is true that

V letters rogatory are both executed by and issued from the Federal

1 courts from time to time, and probably also from the State courts. Let-

^terg rogatory have, I think, been actually issued from the district courts

^ Ifew York in the case of Wolff, which gave rise to this question, and

ce the question arose. Sections 875, 4071, 4072, 4073, 4074, of the Be-

A Statutes, contain provisions on the question."

Mr. Fisb, Sec. of State, to Mr. Davis, Jane 8, 1875. MSS. Inst., Qenn.

As to letters rogatory from a United States court to a Brazilian conrt, see Mr.

Cadwalader, Asst. Sec. of State, to Mr. Partridge, Aag. 13, 1875. MSS.

Inst., Brazil. See farther Mr. Frelinghnysen, Sec. of State, to Mr. Ton

Schaeffer, Mar. 29, 1683. MSS. Notes, Austria. Mr. Frelinghnysen to Mr.

Morton, Dec. 19, 1884. MSS. Inst., France.
As to letters rogatory from abroad to take the testimony of persons in prison

in the United States, see Mr. Frelinghnysen, Sec. of State, to Mr. Sargent,

Juno 27, 1883. MSS. Inst., Qenn.

INDEX.

SEcnox.

OXMEKT of citizenship, effect of 176

BKN, Lord, letter, Febraary 23, 1843 ISOe

papers of, as to Aahbarton treaty 327

iTiONof allegiance, effect of 174^

4TI0N of treaty, how prodnced by implication 137a

TABiLXTT a condition of reception of foreign minister 82

t Qvoal to ask foreign Government in advance 82

aditions Uniting rights of accrediting Government cannot be imposed . 82

noir, not colonization» the policy of the United States 72

,C.F., minister to Great Britain, Jnne 14, 1861 69

July 6, 1861 359

September 7, 1861 342

November 21, 1861 109

papers of, relative to declaration of Paris 342

opinion in (Geneva tribunal 309

views as to Geneva tribunal « 402a

,J., letter, July 20, 1778 113

October 14, 1780 81

April23,1782 107

diary, October 2,1782 107

November 8, 1782 107

November 10, 1782 107a

November 18, 1782 45

letter, February 5, 1783 81

February 10, 1784 45

August 27, 1784 107o

diary. May 13, 1785 107

letter, June 2. 1785 107

January 19, 1786 81

February 16, 1788 79

je-President, May 17, 1789 107a

August 29, 1790 81

jsident, letter, July 7, 1798 116

proclamation, July 13,1798 335

letter, November 2, 1798 109

annual address, 1798 83

letter. May 21, 1799 33a

Julr20,1799 97

annual address, 1799 81,83

letter, October 3, 1800 342

I J., letter, September 30, 1805 45

September 27, 1808 45

INDEX.

sicnox.

Adams, J., letter, December 26,1808 320

"Patriot letters," 1809 45,81,109

letter, August 10, 1822 301

ADAM8,J.Q.,ininister at Berlin, October 31, 1797 342

Secretary, August24, 1816 70

November 6, 1817 110,134

November 11, 1817 50*

November 16, 1817 : 130,361

January 27, 1818 50s

March 12. 1818 5,201,227

March 14, 1818 402

August 10, 1818 5

October 31, 1818 5,30

November 2, 1818 327,331

November 28, 1818 348tf

November 30, 1818 50/

January 1, 1819 70

January 28, 1819 115

April 15, 1819 385

August 18, 1819 131

December 16, 1819 ^

January 2, 1820 ,. 78

May 3, 1820 402

May 6, 1820 131

May8,1820 131

Julys, 1820 57

July7, 1820 388

December 30, 1820 i 78

March 29, 1821 134

August 3, 1821 107

November2, 1821 ^

February 22, 1822 327

March 9, 1822 231

March 30, 1822 808

April 6, 1822 ?*

April 8,1823 351

April 28, 1823 60,880

April29,18a3 ^^

May 27, 1823 7O,801f3^

June 24, 1823 327,3^

July 17, 1823 57

July28, 1823 342

August 13, 1823 342

November 30, 1823 1*

December 23, 1823 ^

December 24, 1823 ^

May 29, 1824 327

November 18, 1824 ^^

PtOflident, annual message, 1825 ^

special message, December 27, 1825 ^

March 15, 1826 ^'^'^'^

letter, March 20, 1827 ^\

817
annual message, 1827 ^\^

special message, January 25, 1828

732

INDEX.

SECTION.

ij., Representative, December 6, 1845 57

as to treaty with Spain of 1816-^ 16U

n of, as to right of search 327

>n Caroline case 50o

ng Secretary, January 30, 1886 314

r COURTS, Jarisdictionof 26

j urisdiction of crimes on shipboard, extent of 35a

how far conferring citizenship 183

3 requisite to support claims against foreign Governments 213^

plorations in 51

JiVE TRADE, visit of vecbcls claimed to be concerned in 327

ROAD, maybe sent to obtain information 47

ty of, emanates from Executive 78

atic. See Diplomatic Aoents.

ASE 396

LAiMS, treaty of Washington relative thereto 150^

RCHASE, discussion as to duty of House of Representatives to ap-
prove 131a, 158

citizenship in 150,187

rights of Russia in, transferred to the United States ....27,33,

159,300

fisheries, rights of the United States to 309

i, case of 396

reaties with, abrogated L37a

uralization of 171^

law relative to 171 jf

ptionof.. '17,6

Citizenship.)

w far entitled to claim damages for injuries inflicted on them in

rar 223

fhtsof 201

t compellable to military service 202

bject to local allegiance 203

d so to taxation 204

len local or personal sovereign liable for 205

ky be expelled or rejected by local sovereign 206

0 naturalization, see Naturalization.)

B, perpetual, held by English common law 171

relations of 171#

B^ATURALIZATION. )

treaty of, with France 147 Jf

ABROAD not the policy of the United States 45

how far abrogat'Od by change of circumstances 137a

RRAiNE, disputed citizenship in • 185,206

VER, freedom of 30,157

)R8. (See Diplomatic Agents.)

, trial of ..•• 348a

190,243.)

.ioht, case of... 381

.AND, attack in 1817 on marauders in, when under Spanish ^g,, 50a

iistinctive system of 45

jaTED States.)

iSE discussed 38,161

''ER, explorations of 30

s CASE (1879), jurisdiction over 33a

733

INDEX.

BBCnOH.

Animus AiANENDi, effect of, on domicil 199

ANKA(8bip), capture of, in 1805 27,399

AimszATioN, effect of, on allegiance 187

bow far the policy of the United States 72

of Danish West Indies proposed 61s

of San Domingo proposed 61

titleby ^,72

hardens and dnties of iS

of Texas 5,58,70

what rights it transfers 4,5

effect of, on treaties by country ailnexed 136

Aknuixinu of treaties, how far operatlTe 137s

Apia, relation of (Jnited States to O

Apology, international, terms and character of 315

Approval of treaty, practice as to 131

Arbitration, as to private claims ^

as to national difficulties 316

Arbuthnot, trial of 346i

(See 190,243.)

Archer (Rep. Com.), March 4, 1634 U^

Archivbs op diplomatic agents, duties as to 1^

Argentine Republic, mediation of the United States as to 49

mediation by ^

« relations of, to the Falkland Islands ^

treaty relations with ^^

ArgOelles' case ^

ARiffiD expeditions of belligerent not to be permitted by neutral ^

Armed forces must be authorized by Government ^

Armed neutrautt, position of^ as to maritime warfare — ^

rules of, as to contraband ^

Armies of the United* States, service in, as entitling to naturalization... 1^

Arming merchant SHIPS ^

Armstrong, General (brig), questions relating to 27, 227, 228, 399t^

Armt, foreign, cannot be permitted to pass over neutral territory 13i^

extraterritoriality of ^''

Arthur, President, annual message, 1881 ••• 33a, 125, 145,9^

proclamation, July 26, 1882 ^

annual message, 1882 ^*^

1883 37,506,51,67,70,206,^

1884 60,173,398,402.^^''

Arrests by foreign Governments on invasion of sovereignty « j\

under extradition process, practice as to *^

ASHBURTON,Lord, letter, February 7, 1843 ^

Abhburton TREATY, provisions of ISOet^

Asylum, right of ^^

by neutral to belligerent ships or troops ^

Australasia, relations of, to Sandwich Islands • ^

Austria, action of, as to Eoszta 175^^

Emperor of, award in Nicaragua case, by ^

Austria-Hungary, treaty relations with ^41

Ayes ISLAin>8 (guano) 3W

Awards, definite character of 220,281,316

734

INDEX.

BBcnoir.

Qenerali miflsion to San Domingo 61

t to pnichase under treaty of 1818 302 jjf

OF POWER, maintenance of, not a question for the United States. . . 45

ee approach to, required S9

*, G., minister to Great Britain, October 8, 1847 378a

to Germany, January 20, 1872 88

rcT, discharge in, has no eztratenitorial effect 9

78LAin>s, explorations in 51

international courts in 53,125

POWEBS, treaty relations with 141a

Commodore, conduct on Chesapeake 6igate 331

BSLiJOXRSNT OFEBATiONS, Keutral territory cannot be used as. ..390, 395/

treaty relations with 142

eaning of term under treaty of 1818 305a

!n>8, sovereignty over 150/

UNDT open to United States fishermen 305a

Bnpart of territorial waters 28

Qortheast Atlantic, right of fishing in 305a

Island, title to 30

Strait, claim of Russia to 29,159,309

ollege at, protection of 54

abrogation of certain treaties with 137a

King of, action in exploration of Congo 51

Secretary, March 9, 1885 206

March 10, 1865 ^ 49

March 11, 1885 67,392

Marchia, 1885 35a

March 13, 1885 230

March 15, 1885 173

March28, 1885 220

Maroh31, 1885 390

April3, 1885 242

April 5, 1885 13

April 9, 1885 361,381

April 10, 1885 189,241

April20, 1885 393

May 4, 1885 l... 185

May 6, 1885 194,199

May 12, 1885 184

May 18, 1885 83

May 19, 1885 235

May 20, 1885 82a,174a

May 22, 1885 184

May 26, 1885 172a

May28, 18a5 402

May 29, 1885 172,193

June 1, 1885 369

June 4, 1885 189

June 10,1885 5

June 13, 1885 402

June 15, 1885 231

June 16, 1885 104,125,231

June 23, 1885 201

736

INDEX.

8scnoR.

Batard, Secretary, Jane 24, 1885 231,238

June 25, 1885 230

Jnne27,1885 184

June 29, 1885 171

July 2, 1885 38,88

July 4, 1885 184

July?, 1886 206

July 13, 1885 231,234

July 17,1885 54,234

July 20, 1885 230

July21,1885 117

July 23, 1885 231

July 25, 1885 37

July 29, 1885 221

July 31, 1885 35c, 230, 389, 402

August 5, 1885 175,203

August 15,1885 261

August 17, 1885 144,172,189,230

August 19, 1885 M

August 29,1885 K

September 7, 1885 54.72

September 9, 1885 173,189

^ September 11, 1885 51,63

September 14, 1885 38

October 2, 1885 192,230

October 5, 6, 1885 18

October 6, 1885 13

October 7, 1885 238,246

October 15, 1885 , 56,230

October 16, 1885 242,246

Octobep24. 1885.... 18^

October27, 1885 225

October 28, 1885 1®

October29, 1885 223

November 3, 1885 192

November 4, 1885 204

November 6, 1886 92,121

November 7, 1885 104,134

November 20, 1885 6,261

November 28, 1885 171,172,183,230,234

December 12, 1885 1**

December 18, 1885 1^

December 23, 1885 t *

January 7, 1886 '. 133,137«

January 9, 1886 213

January 14, 1886 242

January 15, 1886 1^

January 22, 1886 215

January 25, 1886 231

January 26, 1886 221

February 5, 1286 165,213,215

February 18, 1886 ^

February 20, 1886 ^

February 26, 1886. 63,311

736

INDEX.

SBCnON.

ieeretary, February 27. 1886 63 .

March 4. 1886 176

March 8, 1886 191

March 12, 1886 179

March 18. 1886 65

March 19, 1886 242

March :iO. 1886 4,176

March 22, 1686. 221

March 23, 1886 144

March 31, 1886 221

April 2. 1886 ^ 348

April 9, 1886 176,327

April 15, 1886 95,280

ApriI16,1886 51

Aprill9, 1886 327

April21, 1886 231

April2r. 1886 185

April28, 1886 238

April 29, 1886 115

April 30, 1886 215

May 6, 1886 130,220

May 12, 1886 316

May 14, 1886 ^ 144

May 18,1886 316

May 19, 1886 191

May 26,1886 38.89*

May 28, 1886 32

May 29,1886 268

Jnne5, 1886 361

June 12, 1886 30

June 14, 1886 191

June 19, 1886 172a

June 23, 1886 , 8,230,242

June26. 1886 373

June 28, 1886 f-..^.. 223,352

July 7, 1886 ?. 206

July 9, 1886 99,183

July, 17, 1886 134

July 20, 1886 189

July 24, 1886 176,183

July 26, 1886 189

July 27, 1886 189

July 28, 1886 ^.... 361a

August2, 1886 15

August 23, 1886 2766

October20, 1886 410

lationflof to isthmus transit 295

»Yereignty over, as affected by Clayton-Bulwer treaty 150/

ritish rights of cutting wood in, not divested by treaty 303

BVOT, recognition of , 69

rights and duties of as to blockade ^^ff

contraband 3 8/*

war 333/

when imputable to insurgents 351

Mis. 162— VOL. m 47 737

INDEX.

ncnoi.

Bkluoerent actioNi how far barrlnjc international claims 240

armed craisers, not to be fitted oat in neatral ports 396

Bbluoxbskt cuaMs :

A sovereign Is not ordinarily responsible to alien residents for ix^aries
they receive on' his territory from belligerent action, or from inur-
gents whom he conld not control, or whom the claimant Qovern-

ment had recognixedas belligerent 9i3

Nor for injuries ftom acts of legitimate warfiire waged by him on his

enemy's soil 2S4

Greytown bombardment 8S4c

But belligerent is liable for ii^jnries inflicted in violation of mlea of civ-
ilized warfare 2S

(As to claims against neatrals, see 827.)
(As to claims against belligerents, see 228.)

Beluobrbntdomicil, effect of 300,358

PRIZES cannot be sold in neutral ports 400

RIGHT TO 8EIZB BMEMY'B PROPERTY AT 8BA 341/

RIGHTS, who are entitled to 350

SHIP, capture of 345

SHIPS or troops, asylums of, in neutral ports i. 394

SPOLIATIONS, liability of Government for 223/2^

TROOPS not to be permitted to traverse neutral soil 396

Bblugbrents not to be permitted to use neutral waters as the base of oper-
ations 399

FOREIGN, mediation between 49

Bblugbrents, who are :

In foreign war authorization from sovereign generally necessary 350

Insurgents are belligerents when proceeded against by open war 351

Bbltovsba, marginal, question as to 90,32,300

Benton (Thomas H.), viewson Caroline case 50i

Bbreblet, Admiral, action of, as to Chesapeake 331

Berlin AND Milan DECREES, spoliations under 2S8

Biddle, Commodore, action in opening Japan 153

BiNNBT, Horace, opinion of, in Meade's case 948

Birth in the United States, how far conferring citixenship 183

Black, Secretary, February 28, 1861 ^

Black Sea, nentralization of 40

freedom of access to, required ^

Black Warrior, case of flO,lfl9

Blainb, Secretary, March 14,1881 SOS

March 22,1881 «1

March 24,1881 »•

March 25,1881 ^

March 31,1881 1W,1»

April 7,1881 1»

April 12,1881 »

April 15, 1881 TO

April 22. 1881 K4«

April23,1881 e

AprU25,l881 ^

May 1,1881 115

May 3, 1881 ««>

May 7, 1881 70

May 9, 1881 7«

738

INDEX.

sscnoN.

8eeietai7, May 18,1881 371

. Maya6,1881 ...18,203

May 89, 1881 116,118

May 31. 1881 146

June 1,1881 58

June 2, 1881 230

June 3. 1881 ....125,371

June 6, 1881 271

June 8, 1881 172

June 15, 1881... 59

June 20, 1881 - 206

June 21,1881 58

June22, 1881 189

June 24, 1881 145

June25, 1881 146

June26, 1881 271

June30, 1881 62

Julyl, 1881 223

July 23, 1881 57

July 29, 1881 55

August 20, 1881 19

AugU8t25, 1881 18

September 5, 1881 57

October 10, 1881 131

October 11, 1881 174a

October 31, 1881 93

November 10, 1881 230

November 15, 1881 173,183

November 19, 1881 62,150/; 232

November 22, 1881 56,59

November 26, 1881 70

November28, 1881 58

November 29, 1881 49,150/

December), 1881 69,62

December 3, 1881 206

December 6, 1881 174a, 216

December 10, 1881 67

December 16, 1881 67

December 19, 1881 125

View as to annexation of San Domingo • 61

it essential to :

Must be duly instituted 369

Must be notified to neutrals 360

Most be effective 361

Obstructions may be temporarily placed in channel of access 361a

)rc6mentof:

Vessels seeking evasion of may be seized 362

Mustbebronght to prize court 363

flc blockade 364

y of neutral as to blockade running '. 365

[>K KxmxERS, seizures of 362

, war with Chili 59

(Solicitor of Navy Department), opinion as to Confederate cmiseis. .381, 385

739

INDEX.

ocnos

Bombardment, right of, and claims for ii^aries inflicted by 50d, 223, 224, 349

Bonds FOREIGN, diplomatic interposition as to 8314

Border raiders, right to punish eztraterritorally ^

Border RIVERS, diversion of waters of a 20

Bosphorus, jurisdiction over 30,31

Boundaries, determinable primarily, by Executive 32

of the United States not affected by treaty of peace of 1783. .. 6,150

Boundary rivers, conflict of titles as to 30

Brazil, abrogation of certain treaties with 137t

action of, as to Amazon River 157

liability of Qovemment of, for mob injuries 396

treaty relations with 143

British Channel, Jurisdiction over 31

CLAIMS on Mexico (1860) 58,818

DOMINIONS in Central America, limits of IW

Government, duty of, as to border raiders 18

interference in Hawai i protested against ^

GRANTS, effect of treaty of peace on 150

Honduras, sovereignty over, as affected by Clayton-Bulwer treaty.. 150/

INTERVENTION in Mcxico in 1861, to compel payment of debt 318

REPRISALS in war of 1812 348*

SPOLIATIONS, distinctive character of 228

SUBJECTS, naturalization of, in the United States for a time contested. 171

rights of, in America under treaty of peace 302

TERRITORIAL WATERS, act of 1878, effect of .^ 32

Brown, J. P., minister to Turkey, November 4, 1871 ; November 6, 1871 .... 54

8. A., chiefclerk, June9, 1880 K

Buenos Atrbs, proceedings against to compel payment of debt 33«

relations of, to Falkland Islands ^

Bulwer, Sir H., position as to Clayton-Bulwer treaty IW

Business relations, how far suspended by war 337

Butler, General, effect of his proclamation of 1862 at New Orleans 3

Buchanan, Secretary, April 15, 1845 ^

July 12,1845 136

September 27, 1845 33,8S.»8,»6^

March 4. 1846 3»

March 9, 1846 Wl

March 13, 1846 99

June 19, 1846 330

December 16, 1846 113

January 28, 1847 ©

March 19. 1847 88,84

May 20, 1847 -213

June 13, 1847 GO, 386, 386, 396,400

July 27, 1847 5»

August 30, 1847 ^

September 18, 1847 132

November 15, 1847 »3

February 1, 1848 I®

March 22, 1848 IM

March 31, 1848 - 70

May 13. 1848 14S

Junes, 1848 57,»

AugU8t7, 1848 W

140

INDEX,

SKCnON.

JAK, SeoretAry, AngustSO, 1848 402

October 14, 1848 29

November 18, 1848 82

December 18, 1848 189

January 17, 1849 362

Jannary23^ 1849 32

February 16, 1849 *. 79

February 17, 1849 410

HiniBter to Great Britain, October 28, 1863 1076

December 9, 1863 1076

(statement for Lord Clarendon as to

Moequito Country) January 6, 1864 . 160/

February 7, 1864 1076

February 18, 1864 1076

February 24, 1864 1076

Marob24, 1864 386

(statement) July 22, 1864 160/

Augu8t3, 1866 271a

Preaidaiti annual message, 1867 146,160/

1868 606,60,67,230,327

1869 60,107,318,321,334

1860 49,68,60,67,160/182,296,327

LADSB,Anitiant Secretary, September 22, 1874 204

October 17, 1874 «71a

November 25. 1874 201

March 11. 1875 12a

March 16, 1875 204

April 15,1875 261

May 11, 1875 268

Auguste. 1875 104

Angu8tll.l87 174a

August 17, 1475 104

Augnst 19, 1875 121

August 20, 1875 107

Angu8t21, 1876 281

November 2, 1875 125

Maroh27, 1876 121

October 14, 1876 36

October 19. 1876 91

December 27, 1876 270

m, Senator, MarohlS, 1840 38

June 11, 1841 21,60

January 24, 1843 72

March30, 1848 287

May 15, 1848 t.... 67

views as to acquisition of new territory ....• 72

views as to discovery as basis of title • 2

Monroe doctrine 67

fieoretaiy, May 28, 1844 231

June 28, 1844 131a, 138

July 18,1844 104

741

INDEX.

ncnoi.

OALHOUHy Secretary, July 25, 1844 S6B

AugUBtT, 1844 15,277

August 12, 1844 72

Septembers, 1844 2

September 10, 1844 72

, September 21, 1844 402

September 25, 1844 15

December 4, 1844 277

March2, 1845 222

CAas, SecretMy, AprillO, 1867 334

May 30, 1857 $7

.June 29, 1857 3U

July 1, 1857 ^ 3U

July29. 1857 65

September 10, 1857 145

October 23, 1857 49

February 20, 1868 «

April 6, 1868 isy

April 10, 1858 3»

April 26, 1858 22J

May 22, 1858 7,33,69

June23, 1858 317

July 18, 1858 317

July 25, 1858.* 107,145,28

August 10, 1858 242, 3M

August 18, 1858.... 175

October 21, 1858 57

November 8, 1858 150(

November 25,1858 *..... »

November 26, 1858 fl9,2(B

December 2, 1868 67

December 8, 1858 52

December 10, 1858 : »3,2»

1868 (no other date) 67

January 25, 1869 327

February 23. 1859 15,327

March 7, 1859 66,70

April 9, 1859 18l,271i

April 12, 1859 2»

April 30, 1859 145

May5, 1859 2»

May 12, 1859 181,1»

June 14, 1859 181

June 17, 1859 104,342

June27,1859 361,8»,370

July 8, 1859 181

July27, 1859. 181

August31, 1859 293

October 22, 1859 8

November 16, 1859 IW

December 9, 1859 180, 1»

December 31, 1859 181

February 2, 1860 261

March 3, 1860 .^ 1»

142

INDEX.

SBCriON

«t»ry, March31,1860 327

May 3.1860 .♦ 230

May 4, 1860 145

September 20, 1860 57,58

October 3, 1860 182

October 22, 1860 54

November 12, 1860 261

November 15, 1860 231

November 26, 1860 66,389,402

BBpondenee with Mr. Webster, on Aahborton treaty 150o

raof, as to Monroe doctrine 57

oh in Senate, Ani^st 31, 1Q52 305a

Jannary, 1854 .* 1505

>lomatic agency in ^ 53

' QOTXRNMXNT IN Peru, recognition of 70

Spanish minister, statement of, as to Spanish methods of crimi-
nal trial 230

[A, cession of 154,155,315a

interested in an isthmas route 150/

original military occupation of, by United States 3

effect of cession of, on its laws J 4

relations to, of Sandwich Islands 62

<(Lord), views on Caroline case 50o

luty of, as to border raiders 18, 19

lolicy of the United States towards 72

pursuit of raiders into 50s

elation of, to fisheries 301 J^

(SeeFlBHEBIBS.)

ivers and canals of, freedom of 30

0 be subordinated to Great Britain in international discussions .... 308

hmian, considerations relating to 150/, 287^

eutralization of 40

his position as to the Holy Alliance, and as to South America's in-
dependence 57

his tone as a diplomatist 107

Aix, range 6f, as designating territorial waters 32

OF enemy's propebty, right of 238 if, 348

ee War, Belugbrents.)

OF VESSELS AT SEA, considerations concerning ^^ff

.examinations of, by prize courts 329 J^

ben oi>en to capture 328^

feet of blockade breach on 362 J^

abilities of, when contraband ^ 375

Islands, relation of the United States to 63

protection of missionaries in 55

(steamer), destruction of, by British authority at Sohlosser, N. T.,

21, 60c, 350

sffect of British occupation of, in 1814 2

kOHf Lord, position of, as to Arbuthnot and Ambrister 216

DE Islands 314

America, abrogation of treaty of 1825 with 137a

how affected by Clay ton-Bnlwer treaty 150/

mediation in affairs of 49

743

INDEX*

ncncK

Certificate ov KATURAUZATioir, effect of 174/

imgmarity of iaane of 191

CE88IOK, whatrighta it traoBfera 4,5

of territory, effect of 4/

Florida lOi

Jx>ai8iaiia 1^

Pacific coast IM

how affected by Monroe doctrine ^

Changs of cibcumbtanoss, effect of, on treaties ^. 137*

Changs of ooYSBinaEMT does not vacate prior treatiea 137

Chaztnel, change of, in river, bow affecting title to islands 30

Channels, obstmction of ^ 34,36U

Chabo£ d'affaibbs. (See Diplomatio agents.)

Charitable coKTRiBunoNS abroad ^

Chesapeake aud Lbofabd, incidents as to collision of 315>, 319,331

Chesapeake (merchant vessel), capture of, by Confederates, and abuse of

nentral waters by ^

Chihuahua, marauders may be pnrsaed into 80f

Children ;

Bom in the United States generally citisens 10

So of children of naturalised citizens 1^

So of children bom abroad to citisens of the United States ^

Chili, abrogation of certain treaties with 137«

relations to the United States as to war with Peru 49,80

AND PSBU, mediation between, in 1879 ^

China and Gbbat Britain, mediation of the United States between ^

China, relations of the United States to ^

opium trade in ^

transit passes in 193

treaties with, of 1858, superseded 137«

treaty relations with 1^

penal code of 1**

Chinese labobbbs, transit of 1^

LABOBBB8, distinctive position of, in the United States ^

AGGBESSiONS on citizcus of the United States 67f93B

ATTACKS on, in the United States 67,886

citizenship of 173,1^

injuries to 886

IMMIGRATION, limits to be imposcd ou 67

MBRCHANTSk distinctive position of ^

NATURALIZATION of 144,174,197

VB88BL8, purchase and sale of, by citixens of the United States.... ^^

UHRiSTMAS Island^ title to 63

Circassian, case of, comments as to 38^359

Circumstances, change of, effect of, on treaties 13^'

Citizen entitled to passport ^ 1^1/

of asylum state, when subject to extradition 973

abroad entitled to call on Federal Government for protection ^t

Citizenship:
Expatriation :

Principles of expatriation afltened 1^

Conditions imposed by Qovemment of origin have no ezimtsni-

torialforce I'*

744

INDEX.

8BCTIOX.

ZBK8HIP— Continned.

Expatriation — Continiied.

Nor can the rights of foreigners be limited by ooontry of temporary
residence leqniring matricolation or registry 172a

Naturalization :

Principles and limits of. 173

Process and proof 174

Judgment o^ cannot be impeached collaterally, but if fh^udulent

may be repudiated by Government 174a

Mere declaration of intention insufficient 175

Abandonment of citizenship :

Citizenship may be so forfeited 176

Or by naturalization in another country ^ 177

Effect of treaty limitations 178

Under treaty with Germany, two years' residence in Germany priwM
/aoitf proof of abandonment 179

Liabilities of naturalized citizen on returning to native land :
« While voluntary expatriation is no ground for adverse proceedings

it is otherwise as to acts done by him before expatriation 160

If he left military duty due and unperformed, he may be held to it

if he return after naturalization 181

But no liability for subsequent duty 182

Dhildren :

Bom in the United States generally citizens 183

Soof children of naturalized citizens 184

So of children bom abroad to citizens of the United States 185

Harried women :

A married woman partakes of her husband's nationality 186

Territorial change :

Allegiance follows. 187

Naturalization by revolution or treaty 188

Protection of Government :

Granted to citizens abroad. 189

Right may be forfeited by abandonment of citizenship 190

Care of destitute citizens abroad not assumed 190a

Passports:

Can only be issued by Secretary of State or head of legation 191

Only to citizens 192

Qualified passports and protection papeis 193

Visas, and limitations as to time 194

How to be supported 195

(As to sea-letters, see 408/1)

[ndians and Chinese :

Indians : 196

Chixiese 197

Domicil:

May give rights and impose duties 198

Obtaimng and proof of 199

Effect of 200

Uiens:

Rlghtsof 201

Not compellable to military service 202

Subject to local allegiance 203

And so to taxation 204

745

INDEX.

ncnoi.
Citizenship— Oontlxmed.

AlieiiA— Gontinued.

When local or personal sovereign liable for 205

May be expelled or rejected by local sovereign.... 206

Corporations:

Foreign corporations presumed to be aliens **. 207

Citizenship, abandonment of 176

Federal and State, relations of 173

CiTOYEN Genet, case of. 396

Civil war, contending parties, question of sovereignty between 70

declaration not necessary to 333/

wben partiesto,are belligerents ®

wben contestants make de facto Government ^

United States, foreign mediation in ^

CivniZED WARFARE, liability for violation of rules of 285*347

Civilized warfare, rules to be observed :

Spies and their treatment ^^

Prisoners and their treatment :

General rules ••..... ^

Arbuthnot and Ambrister ^

Reprisals in war of 1812 ^

Dartmoor prisoners ^**^

Cases in Mexican war ^

Wanton destruction prohibited ^

Claims :

Mode of presentation :

Home claimant must make out his case to the Department by affida-
vit or other proof *^'

Foreign claimant must appear through diplomatic agency *

Who may claim :

United States citizenship must be shown to sustain claim, and sack

citizenship must have existed when the claim acemed '^

A citizen who has voluntarily expatriated himself cannot claim the

interposition of the Department ^^°

Corporations ^"

Practice as to proof and process :

Department cannot examine witnesses under oath ^^

Ko peremptory demand to be made unless under instmotions from

Department ^^

Department has control of case, and may arbitrate, compromise, or

withdraw ^

Arbitration proper when Governments disagree ; limits of arbitra-
tion ®

Government may resort to extreme measures to enforce payment ^

Claims based on war :

A sovereicni is not ordinarily responsible to alien residents for injuries
they receive on his territory f^om belligerent action, or from insur-
gents whom he could not control, or whom the claimant Govern-
ment had recognized as belligerent ^

Kor for injuries from acts of legitimate warfare waged by him on

his enemy's soil ^

Greytown bombardment ^^

But belligerent is liable for injuries inflicted in violation of rules of
civilized warfare fl5

746

INDEX.

SEOnOM

LMfl — Continued. •

Olaims based on mob ixv|uriee :

A Government is liable internationally for each iiijnries when it ooold
have prevented them ; bnt when there is a remedy given in the

judicial tribnnals, this mnst be pnrsned 226

Claims based on spoliation :

Foreign neatrals liable for breach of neutrality 227

Foreign belligerents liable for abuse of belligerency SS28

How far public ships are liable for torts 229

Claims based on denial or undue discrimination of Justice :

Such claims ground for interposition 230

But not mere national peculiarities in administering Justice not vio-
lating international obligations 230a

Contractual claims :

Not ordinarily pressed • 231

Exception where diplomacy is the only mode of redress. 232

Tender of good offices 233

Claims for real estate :

Title to be sued for at WtiM 234

Otherwise as to trespasses and evictions 235

Claims based on negligence 235a

Liability for prior Qovemment :

Governments liable for predecessors' spoliations 236

Defenses :

Part payment 237

Li$ pendem, election of another tribun al, res adjudicata 238

Limitation 239

Intermediate war or settlement 240

Non-exhaustion of local Judicial remedies 241

But this does not apply where there is no local Judiciary, or where
the Judicial action is in violation of international law, or where the

test is waived, or where there is undue discrimination 242

Culpability of claimant 243

No national discrimination as to claimant ' 244

Practiceasto payment 245

Interest :

Not generally allowable 246

Damages :

Remote, not allowable , 247

Home Government's liability for abandoning claims 248

Foreign sovereigns may sue in Federal courts 249

IMS 00NVBNT10N8, actiou of Government as to 220

BENDON, Earl, statement of, as to Mosquito Country 295

May2, 1854 150/

TTOK-BULWBR TREATY 160/, 287 Jf

T, HsNRT, agency in recognition of South American independenoe 70

attitude towards Spain in 1816-^20 161a

letter, March 15, 1812 320

December 25, 1814 150o

T, Secretary, March 26, 1825 67,134

April 6, 1825 131

May 10, 1825 i 70

October 17, 1825 60

October 25, 1825 60

747

IKDEXi

fllCTIOK.

Clay, Sccretaiy, February 10, 1836 72

March 29, 1826 .49

AprillS, 1826 60

Mays, 1886 287

May 20, 1826 148a

June 19, 1826 30

June 21, 1826 331

January20, 1827 107

January 31, 1827 88

March 22. 1827 v 3ffi

March 28, 1827 241

April 6. 1827 404

June 9, 1827 227,393

August 15, 1827 331

October 27, 1827 34

October 31, 1827 393

November 12, 1827 Wl

January29, 1828 396

January 30, 1828 ^

February 5, 1828 241

February 18, 1828 ^

Aprils, 1828 34

April 11, 1828 <00

May 1,1828 394,396,400

December 10, 1828 «.Wl

Senator, report in 1834 on relations to Fnoice ^

report June 18, 1836 70

Clatton, Secretary, April 10, 1849 396

AprU 11,1849 ^

May 1, 1849 209

May 2, 1849 148,2»

May 6, 1849 3*

May 12, 1849 360

Blay 19,1849 ^

May 31, 1849 1^

June 18, 1849 '^

Julys, 1849 7^

July 10, 1849 290

July 19, 1849 145,296

AugU8t2, 1849 ^

Augusts, 1849 ^

August 28, 1849 ^

September 14, 1849 ^^

January 1, 1850 ^^

January 9, 1850 1*

January 12, 1850 ^

January 14, 1850 ^^

January 24, 1850 ^

February 15, 1850 268

April 19, 1850 ^^

July 5, 1850 ®

CLBTSLAifD, President, annual message, 1885 51,65,72,83,145,m,287|3H^

special message, March 2, 1886 ^

April C, 1886 ^

748

8BCTI0K.

OFPORT8; effeotof 361

when permitted, by obatraotionB 34,361a

Ji, how far contraband 36^

supply of, when breach of neutrality 396

iBXTTy proceedings agaiust for libel on Spain 56

iHBANB, Admiral, outrages by 318,349

XBUBN, Sir A., views of,id Qeneva tribunal 402a

IJ8IOK8 AT SKA, Jurisdiction over • ;. .. 26

OXBIA, bound as to isthmns transit by treaty 290,292

recognition of independence of 70

treaty relations with 145

termination by limitation of treaty of 1836 with 137a

ON, port of, questions as to 145, 150f,fi91

ONiAL TRADB, forbidden in peace, may be carried on in war 388

ONIS8, effect of independence of 6,298 j^

policy of the United Statesasto 72

British recognition of independence of 150

recognition |(enerally of independence 70

independence of, does not affect their boandaries or other territo-
rial rights 6,150,300/

CONIZATION, not the policy of the United States 72

fET, ship, case of 38

fiTT, when a basis for extradition 268

CMBRCiAX INTERCOURSE, suspcnsion of 319

RELATIONS, how far broken up by war 337

TREATIES, effect of 138

(PACTB, international, construction of 132

CPUL8ION, a defense for breach of port law 38

n>BXNATION OF SHIPS AT SEA :

Action of prize court may be essential 328

When having J nrisdiction such court may conclude 329

But not when not in conformity with international law 329a

Proceedings of such court 330

EDITIONS IN TREATY, whcu interdependent 133

7FEDERACT, SOUTHERN, had a de/octo government 7

!7FBDERATB BELUGEREN CY, recognition of by France and England 69

FORTS, blockade of in €861 359,361

STATES, independence of not to be rightfully acknowledged.. 70

prize courts of, without Jurisdiction 329

S*FI8CATI0N, claims of aliens for redress arising from 234,228,338,352

how far a war measure. 3:)8

KFISCATIONS, in Cuba, protested against 60

charges asto 230

NFUCT OF LAWS, effect of 9

!700 COUNTRY, discovered by American citizens 2

NO^ KiYBR, exploration as to .' 51

questions as to *. 30,51

NGRBSS, how far bound to pass act executing treaty 131a

may municipally annul treaties 138

OF Paris, declaration of as to maritime war : 342

OF Vienna, rules of, as to navigable rivers 30

diplomatic grades 88

NQUBROR, administration of conquered territory by 3, 4, 354

749

IKDEX.

sicnoH.

CoNQumffr, effect of title by ^f

on allegianoe 1S7

what lights it tnuiBfen 4.5

Conrad, Apting Seoretftry, September 21, 1868 313

October 18, 1862 230

October 88, 1858 37

November 5, 1858 321

CONSCBIPnON OF AUXNS, mlc ftS to 202

CoNBBQUSKTiAL DAMAGES, wben allowable on international olaima 247

Constitution of ths United States, distlnctiTe featnres bearing on in-
ternational law :

Ab to territorial occupation « 4/

Jarisdiotion 11/

high seas ^/

annexation 58,72,14»,161fl

exccntive authority 71,78/, 122, 139, 238. 3»,3a9«, 36*2

Boorceof diplomatic action 7$f

recognition of foreign states "^0

negotiation of treaties 131

force of treaties 138,139

naturalization 173/

North American Indians 196,206/

Chinese l^

general power of Congress over marriage ^1

right of foreign sovereigns to sue in Federal courts ^

diplomatic and consular privileges 92,96/120

declaration of war 333

piracy 380/

power of courts. (See Courts.)

Constitution (frigate), liability for salvage, case of. 37

Construction of treaty, rules for 133

distinguishable from interpretation 133

Consul, Spanish, claim for insults to in New Orleans in 1851 ^

Consular agents, rules as to 1^^

Jurisdiction in China ^

Orientallands ^

Consulates, protection granted by, in Eastern nations 104,tiSiI^

Consuls :

EUgibiUtyof IW

Appointment and qualifying of ^^^

Exequatur 1^^

Dismissal ^^

Not ordinarily diplomatic agents ^^

Vice-consuls and consular agents ^^^

Not to take part in poUtics 1^^

Privilege as to process ^^

, Other privileges .' ^'

Right to give asylum and protection ^

Business relations of ^

Port Jurisdiction of seamen and shipping *^

Judicial functions iu semi-civilized lands ^

Relations of, to passports I91,193|1W

Continuity of possession, wben giviug national title ^

"Continuous voyages," distinctions as to 382,888

760

INDEX.

BAKD : SKcnoy.

litionsof war contraband 368

I whatever is essential to belligerent support :

As to coal 369

provisions 370

money 371

horses 37^

merchandise 373

soldiers 373a

r far dispatches and diplomatic agents are contraband 374

alties on contraband:

May beseiseed on high seas .* 375

BAND OF WAR may be fnmished to belligerent without breach of neu*

f 391

CTS, CLAIMS BASED ON,

ordinarily pressed 231

option where diplomacy is the only mode of redress 232

der of good offices 233

CT8, distingaishable from treaties 133

how £ftr suspended by war 337

lunoNS may be imposed in war 339

lUTORT negligence or misconduct when barring claims 243

moN8. ( See trkaties. )

TiON WITH France of 1800 148a

rnoNs WITH Qreat Britain of 1815, 1816 150d

noN OF CRIME, how far barring naturalization 174

'8, protection by 346

, Judge T.) opinion of, as to Judgment of foreign price courts 329a

international relations of 64

ATI0N8, foreign, rule as to 207

practice as to claims of 217

tiCA, relations of, as to isthmus transit 294

recognition of revolntionof 1865 in 79

treaty relations with 146

, liability to capture in civil war 223,338,373

1 extradition cases 281

[«, ORDERS OF, restricting neutral trade 388

L, foreign, permission to practice in United States courts 230

YOF BIRTH, claim of, to allegiance 171

8T, duties of diplomatic agents as to 107

>F Claims, when foreigners may sue in 241

are to follow Executive or legislature in determining national bound-
aries 22

do not conclude by Judgments in matters international.. .238, 329, 329a, 362

cannot control Executive in treaty-making powers 139

Department in foreign aifairs 238

follow Executive in determining question of recognition of foreign

powers 71

province of, in respect to treaties 133

when to be applied to before diplomatic intervention ^1^

undue discrimination by, basis of claim 230

consular, limits of > 125

, foreign, authority of, not recognized 1

distinctive practice of, cannot ordinarily be excepted to . .. 230a

military, creation of 354

761

INDEX.

flicnoi.

CrallA, Acting Secretary, October 30, 1844 239

Crawford, miDister to France, March 21, 1815 7D

8ecretaryofTreaeary,May 13, 1892 107

Creolb, case of, discassed 38

Crime ABROAD, not subject to extradition 271

not ordinarily punishable 15

Crimes IN PORT, subject to law of port 35«

on shipboard, subject to country of flag 33f

Criminal courts, undue discrimination by S30

Criminals, foreign, can be repelled 16,206

Criminal jurisdiction, in the main, territorial 15

C RiMiNAL u abiutt of persons violating nen trality statutes 404

Criticism on foreign (Governments, not forbidden 47,387

Crittenden, Acting Secretary, October 8, 1851 5S

October 2% 1851 60

Cruisers, asylum for, in neutral ports 304

for belligerent cannot be fitted out in neutral ports 396

Crokbr, correspondence as to Ashburton treaty 1^

Cuba, boundary of territorial waters of 327

claim against, for illegal arrests and embargoes in S30

exactions in, as to passports 101

extent of territorial waters of 32

relation of United States to 60

intercession for prisoners in ^

policy of acquisition of 7^

undue discriminations of justice in 830

Cuban insurrection, action of United States as to 60,402

maltreatment of citizens of the United States, claims for ^^

port LAW, exactions by 37

Cushino, minister to China, September 29, 1844 67

minister to Spain, protocol, January 12, 1877, with Hr. Calderon si

to administration of justice 830

Custom-house extortions, foreign 37

SEIZURES, not to be extraterritorial 27,3K

Cuttino, maltreatment of, by Mexico 16,180

Cyane, war vessel, bombardment of Qreytown by ^

Dallas, A. J., Acting Secretary, June 26, 1815 ^

editor of Judge Cooper's pamphlet on prise courts ^

Dallas-Clarendon treaty, how far affecting isthmus transit ^ 1^/

Dallas, G. M., position of, as to right of search 327

minister to Great Britain, Jane 26, 1856 1<^^

December 12, 1856 385

October 13, 1857 *

June 11, 1858 327

May 21, 1880 13U

Damages, consequential, when allowable as international claim ^^

Dana, Francis, first minister to Russia 158

Danish recognition of United States belligerency during BeTolntionary War. ^

Danish West India Islands, policy of annexing 6Ui'*

(See Denmark.)

752

INDEX.

8SCTION.

igation of 30

3, right to free passage of 29

neutralization of 4Q

RisONERSy outrage on and negotiations as to 315o

maltreatment of .\. 346o

ting Secretary, Angnst 11, 1882 68

August 18, 1882 410

September 4, 1882 37

September 23, 1882 1 220

October 10, 1882 9

May23, 18»3 89

May25, 1883 20G

June4, 1883 49

Jnne23, 1883 37

July30, 1883 184

October 14, 1883 189

February 20, 1884 123

B., Acting Secretary, August 13, 1869 ,.. 221

Novembers, 1870 67

August 1«, 1871 84

Septeraber6, 1871 19

MarchS, 1873 121

J«ne23, 1873 241

July 17, 1873 230,244

July 28, 1873 223,26»

RACTUAL, not ordiniirily subjects of diplomatic pressure 231

, when passing to conqueror or assignee 5

3 United States, enforcement of 222

OF INTENTION OF NATURALIZATION 173 jf

does not confer citizenship. 175

OF IXDKPENDENCE, effect of, on allegiance 187,1^8

OF Paris as to seizure of goods at sea 34*i

privateering 383 Jf

■ OF WAR, when necessary 333 ff

what essential to 333^

QERIES open to all 300

case of 327

^ERNMENT entitled to local allegiance 7,203,205

recognition of. 7,70

CLAIMS :

nent 237

r«, election of another tribnnal, rt9 adjudicata 238

n 239

iate war or settlement 240

ustion of local judicial remedies 241

loes not apply where there is no local judiciary, or where the
ial action is in violation of international law, or where the test

ived, or where there is undue discrimination 242

ty of claimant 243

<il discrimination as to claimant 211

AY, part of the United States territorial waters vri

EXTKADiTiox, Hiles as to 274

ZaTIOX, recnguition of IT!

Is. 102— VOL. Ill 48 753

INDEX.

Deioal 07 JUSTICE, claims based on : navxa

Such claims grouDd for interposition 230

Bnt not mere national peculiarities in adminiaterinf Jnstice not TiolaUng

international obligations 230i

DsNHXBK, claim against for surrender of United States privateers and prizei

to Great Britain 399

claim of . to Jurisdiction over Sound 29

spoliation claims against ^

treaty relations with • 147

(See Danish West Indies.)

Denunciation of treaty, when effective I37i

Department of State, action of, as to claims on foreign Governments S13/

independent of Judiciary as to foreign afiaiis 238

cannot take testimony under oath SU

decision of, bow far binding 1@

diplomatic relations of. (See Diplomatic Aoents.)

Deportation of aliens, rule as to 2W

Derby, Lord, views of, as to extradition trials 270

Derrick, Acting Secretary, October 23, 1850 271

Destitute citizens abroad, care of, not assumed by Government 190i

Destruction, bow far p<»rmi88ible in war 338/340

Diplomatic agents:

Executive tbe source of diplomatic authority ' 78

Foreign ministers to recognize the Secretary of State as the sole organ of

' the Executive 79

Continuity of foreign relations not broken by party changes 80

Executive discretion determines the withdrawal or renewal of missions

and ministers 81

Non-acceptable minister may be refused 82

Not usual to ask as to acceptability in advance 8^

Conditions derogatory to the accrediting Government cannot be imposed. 83

Minister misconducting himself may be sent back 84

Mode of presentation and taking leave 85

Incumbent continues until arrival of successor 86

How far domestic change of Government operates to recall 87

Diplomatic grades 88

Citizens of country of reception not acceptable 88i

Diplomatic correspondence confidential except by order of Department.. 89

Confined to official business 89i

Usually in writing 891

Diplomatic agent« to act under instructions 90

Communications firom foreigners only to be received through diplomatic

representatives 91

Diplomatic agents protected from process:

Whoareso privileged ^

lUegalltyof process against ^

Exemption from criminal prosecution 93i

What attack on a minister is an iotemational offense 9^

And from personal indignity...^ W

And from taxes and imposts 95

Property protected ^

Free transit and communication with, secured t*

Privileged from testifying ^

Cannot become Imsiuess agents , 98

Nor represent foreign Govemuients iW

To4

INDEX.

SECTION.

TIC ▲OEKTS—Continued.

Id reude at capital 101

; action with other diplomatic agents nnadyisable 102

38 aa to archives •• 103

t of protection and asylnm 104

ext«Dd protection to citizens of friendly coantries 106

dance of political interference enjoined 106

tesy, fairness, and social conformity expected :

)fficial intercourse .• 107

k)cial intercourse 107a

yonrt dress 107d

•Ixpenses 107o

ingent fand and secret service money 108

sonstitated missions illegal 109

mtsnot allowed 110

TIC AGENTS, how far contraband, and liable to seizure as such 374

AUTUOKITY, rests on President 78

CORRESPONDENCE, form of 89

iNT£R\aENTiON ou clainis, rulcs as to 213 /;219

i.<TERFERENCE, whcu permissible on contracts 231, 232

LANGUAGE, practice as to 130

RY, liow far the basis of title 2,208 /

OF Guano Islands, title from 311

INATION, undue, as basis of claim 230

CHISEMENT, effect of, on citizenship 173

lES, how far contraband 374

OF force, rules as to 321

i, when au excuse of violation of port law 38

li (Viscount), views of, in Geneva tribunal 402a

leral) his position as to pursuit of raiders across frontier bOe

C CHANGES OR POLITICS, uot to be recogulzed in Department of

I may give rights and impose duties 198

obt4iining, and proof of 199

effect of 200

abroad, when forfeiting right to protection of home Government.. 176, 190

belligerent, when imputing belligerency 352

A, foreign interference with resisted 57

AN Republic, recognition of changes of Government in 70

N OF Canada, not recognized by the United States in fishery ques-

304/

Canada.)

when vacating a treaty 130

OF l^XECUTiVK in diplomatic intercourse 78 ff

in respect to extradition ^^ ff

OF BELLIGERENTS 223/

OF NELmiALS 388/

r, change of. does not vacate treaties 137

change of, recognition of 70

<f NATIONS, protection of foreigners in consulates in 104 , 122, 198

»S, Senator, North American Review, January, 1879 316

755

INDEX.

0ECTTOS

XOYFT, international courts in 53

EOTPTEAN DEBT, action of the Department as to S32

Election or citizenship aites reyolutiox 185

Election of another tribunal, when a defense to aclaim 238

Ellsworth, Dayie, and Murray, ministers to France, Joly 23, 1800 137a

Embargo, mles concerning, and history of 320

illegal, in Cuba, claims for 230

Cnban, protest against 60

Emigration. (See 171/., 206.)
Embassadors. (See Diplomatic agents.)
Enemy's property, seizure of :

Private property on land not nsnally subject to enemy's seizure. . . .. 338

Contribntions may be imposed 33D

State movable property may be seized 340

So of property in enemies' territorial waters 341

Liability to seizare of enemy's private property on high seas cinder neu-
tral flag 342

Liability of neutral property nnder enemy's flag 343

Exceptions as to nile of seizare of enemy's property at sea 344

What is a lawful capture of an enemy's merchant nhip 345

When convoys protect 346

Imputing enemy's character to neutral 352

Enlisting by neutral subject in belligerent's service not breach of neutral-
ity 392

Enlistment, foreign, not to be permitted by neu tral 396

Enlisting soldiers in foreign states forbidden 12, 392, 3K

* ' Entangling alliances" abroad not the policy of the United States 45

Envoy. (See Diplomatic agents.)

Essex, frigate, capture of, at Valparaiso, in 1814 27

Europe, distinctive views as to intervention 45

European powers, application of Monroe doctrine to 57

Special applicat'on of this doctrine:

Mexico 58

Peru 59

Cuba ,. 60

Sau Domingo and Hayti 61

Danish West Indies Gla

Hawaii (Sandwich Islands) ., €2

Samoa, Caroline, and other Pacific islands 63

Oorea 64

Falkland Islands 65

Lilieria 66

China 67

Japan 69

Turkey, Tripoli, and Tunis 6i^

Euxink, free access to, required 29

Everktt, Alexander, negotiations with Japan 153

Evidence. ( See Proof. )

On claiuiR on foreijjfn Governments:

Depsirtmeni cannot examine witnesHes under oath , •2li

No peremptory demand to be made unless under instructions from De>

partment "^VJ

Department has control of case, and may arbitrate, coinpromi!«e or

withdraw ^/^

756

INDEX.

iuviDKarcB — CoDtinned. section.

On claiiua on foreign Govemmenta — Continaed.

Arbitration proper when Governments disagree ; limits of arbitra-
tion 221

Government may resort to extreme measures to enforce payment. . . . 722

On extradition process 277

£VART8y Secretary, March 15, 1877 104

May 3, 1877 402

May 28, 1877 18

JoneS, 1877 ^ 402

June 8, 1877 191

June 12, 1877 361,361a

June 15, 1877 63

JuDe21, 1877 397

August 2, 1877 /. 8

October 25, 1877 215

October 31, 1877 232

December 7, 1877 19,189

December 8, 1877 230

December 18, 1877 165

January 9, 1878 402

February 5, 1878 194

February 16, 1«78 281

February 21, 1878 396

March 20, 1878 55

March 30, 1878..-. 105

April 26, 1878 191

April 30, 1878 189

May 6, 1878 234

May 27, 1878 92

May 28, 1878 226

July 1,1878 65,230

July20, 1878 145

July21, 1878 230

July 26, 1878 . 145

August 6, 1878 134

August 13, 1878 50«

September 12, 1878 231

September 20, 1878 19

September 27, 1878 308

September 28, 1878 268

October 23, 1878 8,329tt

October 29, 1878 197

October 30, 1878 19

November 12. 1878 276d

November 19, 1878 268

December 18, 1878 194

December 31, 1878 183

January 8, 1879 190a

January 9, 1879 268

January 18, 1879 29

January 22, 1879 37

February 4, 1879 145

February 5, 1879 ♦ 182

F»'\.ri5«i.v 17,1879 308

INDEX.

8icno5.

EVARTS, Secretary, March 5, 1879 ^

March 7, 1879 WU

March 14, 1879 2»

Marchl9, 1879 ;. m

March 26, 1879 1©

April 18, 1879 m

ApriI19, 1879 32,37,938

May 2, 1879 ". 231

May 8, 1879 410

May 12, 1879 276*

May 15,1879 63

May 19,1879 103

May 20, 1879 410

Jl^ay27, 1879 •. 18

Jane 6, 1879 183

June 9. 1879 410

June 13. 1879 19.37

June 14, 1879 70

June 16, 1879 195,224

June 18, 1879 268,402

June 23, 1879 234

July 10, 1879 206

July 11, 1879 33«

July 12, 1879 66

July 14, 1879 37

July 18,1879 2M

July29, 1879 33a

August 9, 1879 - 55,206

August 20, 1879 220

September 19, 1879 88«

September 24, 1879 49

November 12, 1879 17*

November 14, 1879 118,145,391

November 22, 1879 191

December 10,1879 174«

December 12, 1879 115

December 13,1879 231

December 26, 1879 410

December 27, 1879 33

January?, 1880 66

February 17, 1880 144

February 19, 1880 131

February 20, 1880 204

Marchl, 1880 342

March 2, 1880 121,342,375

March 4, 1880 150/

March 6, 1880 184

March 12, 1880 104

March 25, 18cK) 1M.281

April 13, 1880 220

Aprill4, 1880 55

April 17, 1880 292

Aprill9, 1880 145,207

April 20, 18e0 68f

758

INDEX.

8KCTIO.V.

ITS, Soeretary, April 21, 1880 (56

April 22, 1880 55

April 23, 1880 183

May 1,1880 204

May 11, 1880... 184

May 14, 1880 165

May 15, 1880 123

May 21. 1880 123

May 22, 1880 226

Jime5, 1880 292

June 7, 1880 67

Jane 8, 1880 26t

June 12, 1880 _ 20

June 15, 1880 20

June28,1880 55

Juiy30,1880 53

August 11, 1880 327

August 13, 1880 131

September 4, 1880 18D

October 7, 1880 125

October 10, 1880...: 102

October 15, 1880 242

November 12, 1880 '. 18;J

November 13, 1880 63

December 8, 1880 202

December 30, 1880 67

January 17, 1881 242

January 25, 1881 3«la

February 5, 1881 18

February 15, 1881 1 145

February 18, 1881 :. 145

February 23, 1881 213

February 28, 1881 66

March 2. 1881 55

March 3, 1881 32,55,327

March 9, 1881 190

BTT, Secretary, December 1, lo52 45,60,72

December 3, 1852 60

December 7, 1852 192

December 13, 1852 97,206

December 17, 1852 45,60

December 21, 1852 193

January 14, 1853 Idl

February 4, 1853 lei>

February 5, 1853 54,176,24.>

February 17, 1853 35

February 23, 1853 220,230

Septembers, 1853 72

address, June 7, 1864 109

correspondence of, with Mr, Webster as to Ashburton treaty 327

note to Mr. Webster's Northeast Boundary speech 1 TiOe

as to relations with Russia 158

nox8 may be imposed in war 339

when extortionate, in ports 37

759

INDEX.

ncnox.

ExBCUTiVE is primarily to determine bonndaries S2

cannot be controlled by courts as to treaties 139

nor as to matters of international policy ..71, 78/, 122» 139, 233, 329s, 362

cannot interfere with freedom of speech 56

determines q nestions of reco^ition of foreign powers 71

how far bound to ratify treaty 131

not bound, in foreignrelations, by Judiciary 838

power of, on military occupation 3,355

source of diplomatic authority 78

Exequaturs OF consxtls, rules as to 115

Exiles, poutical, hospitality to 48

not deliyered up on extradition 272

Expansion, territorial, policy of the United States as to 72

Expatriation:

Principle of, affirmed 171

Conditions imposed by Government of origin have no extraterritorial

force 172

Rights of foreigners cannot bo limited by country of temporary rosidonce

requiring matriculation or registry 172«

Citizenship may be foiteited by abandonment • 178

Or by naturalization in another country..*. 177

Effect of treaty limitations 178

Under treaty with Germany, two years' residence in Germany prima faoU

proof of abandonment 17^

(See Citizenship.)

Expenses of diplomatic aobnts.... 108

in extradition cases 291

Explorations in barbakous lands S^

Express, British cruiser, attack on Prometheus, 1851 3^^

apology of British Government for misconduct of ^

Expulsion of aliens, rule asto ^

Extortionate port exactions 37

taxation, rule as to 2W

Extradition, stipulations as to, are not transferable under " favored n*-

tion'' clause 1^

Ordinarily no, without treaty ^

Demand confined to treaty offenses ^

Trial to be only for offenses enumerated in treaty ^

Crime must have been within Jurisdiction of demanding state :

On land 271

On ship-board ^1*

Ko, for political offenses ^

No defense that defendant is citizen of asylum state. ..^ «..- ^

Must be specific foreign demand ^*

State governments cannot extradite ^

Practice as to arrest :

Preliminary executive mandate ^

Form of complaint and warrant *^

Mode of arresting and detention **^

Evidence on which process will be granted *^

Practice as to review ^

Practice as to habeas corpus ^

Practice as to surrender ^

Kxpenacs *'*

INDEX.

6ECnOM.

.DiTiox, Treaties retrospective 232

.TERKiTORiALiTY, cannot be assigned to manioi pal laws 9

of diplomatio agents, scope of 92 f

[As to extraterritoriality, see generally Sovereioxty.)

AND Islands, international relations of 65

>RED nation/' meaning of term l:V4

:al Constitution, relation of, to the States 11

COURTS, power of revision in international cases.21,122,139,2:^,329a,362

Government, relations of, to naturalization 173

(See Constitution of the United States, United States.)

covert, nationality of 186,187

N INSURRECTION, action of United States as to 189

sSf interposition for f 52

LANDS, foreign relations of CA

effect of annexation of, to Great Britain, on citizenship 190

lUSTBRiNG EXPEDITIONS," Suppression of, by the United States 60,402

not to be permitted by neutral 395a

3RE, President, special message, July 30, 1850 327

Februarys, 1851 161

October2, 1851 60

annual message, 1851 45,48,62,121,327,402

1852 60,146

oppressive, levied in foreign ports 37

Secretary, April 3, 1869 373

April 21, 1869 214

May 8, 1869 231

May 12, 1869 99

Junel. 1869 56,175

June 17, 1869 97,361

June 21, 1869 311

June 29, 1869 402

July 13, 1869 107/, 402

July 15, 1869 402

July 17, 1869 402

July24, 1869 402

August 10, 1869 402

August 16, 1869 396

August 31, 1869 - 67

September 14. 1869 1 I.. 381

September 17, 1869 206

September 25, 1869 69,402,403

October 9, 1869 165

October 13, 1869 61,227,402

October 14, 1869 174rt

October 21, 1869 9,241

November 4, 1869 88

December 3, 1869 67

December 22, 1869 120.190a

December31, 1869 ^ 93a

January 11, 1870 244

Febm.'irv 19, 1870 281

7«l

INDEX.

iKcnox.

FtSH, Secretary, Febmary 26, 1870 183

February —. 1870 160

MarchS, 1870 8S«

Maroli 11, 1870 J 82«

Apnl4,1870 67

AprUe, 1870 M

April 16, 1870 tt4«

April 16, 1870 115

April 20, 1870 67

April21, 1870 , 801

April27, 1870 1.. »•

May 9, 1870 1480,194

May 26, 1870 49

June 7, 1870 1»

June 24, 1870 230

June 27, IS^-O 231

July 11, 1870 ©

July 14, 1870 57,150/

July 22, 1870 3*^

September9, 1870 ^

September 10, 1870 1^5

September20. 1870 173

September 30, 1870 ^

October4, 1670 193

October 15, 1870 232

October 19, 1870 97

October 27, 1870 189

October 28,1870 342

November 11, 1870 ,. 97

November 16, 1870 19

November 21, 1870 97

November 25, 1870 230

December 7, 1870 176, 190

December 13, 1870 190

December 15, 1870 176

December 16, 1870 70

December 17, 1870 92

December 20, 1870 125,176

December 28, 1870 1 402

Januarys, 1871 79

January 18, 1871 190

January 14, 1871 312

January 21, 1871 68

Febmary 2, 1871 92

Februarys, 1871 145,241

February 9, 1871 #. 402

February 24, 1871 97,186

Maroh20, 1871 133

April 6. 1871'. 174a, 176

April 18, 1871 92

April28, 1871 224

Mays, 1871 29

May 11, 1«71 68

May 15, 1871 ^3

762

INDEX.

SECnOH.

M5rctary, May 16, 1871 .....234,231

May 19.1871 183

May 21,1871 % 68

May 27, 1871 145

June 13, 1871 241

June 16, 1871 84

June 24, 1871 402

June 26, 1871 18

July 27, 1871 261

July 31. 1871 54

August 18, 1871 84

Septembers, 1871 84

September 19, 1871 215

September •;«), 1871 , 84

October 10, 1871 234

October 20, 1871 241

October 30, 1871 176,190,224

November 10, 1871 84

November 16, 1871 79,84

November 20, 1871 402

November27, 1871 6

December 1, 1871 85

December 5, 1871 54,107

January 6, 1872 183

January 8, 1872 52

January 10, 1872 - 191

January 13, 1872 327

January 25, 1672 91

January 29, 1872 107

February 13, 1872 174a

March 12, 1872 190

March 14, 1872 234

March 18, 1872 173,186

March 19, 1872 231

March 29, 1872 6

April 5, 1872 120

April 13, 1872 19

April23.1872 • 190

April 26, 1872 150/

May 16, 1872 16

June 12, 1872 176

June 22, 1872 171

July 22, 1872 55

October 2, 1872 121

October 18, 1872 120

October 19, 1872 223

October 23, 1872 173

October 29, 1872 t 60

November 19,1872 174a

December 9, 1872 224

December 21, 1872 67

December 24. 1872 183

December 26. 1872 206

December 31, 1872 2

763

INDEX.

SECTION.

FzsB, Seerotary, January 3, 1873 20

Janaary 8, 1873 Uo

January 25, 1873 »

February 5, 1873 177

February 11, 1873 7

March 1,1873 203

March 13,1873 181

March21, 1873 37

March 22. 1873 60

March25, 1673 ^ 08

March 26. 1873 70, IM

April 8, 1873 72

April 9, 1873 : 137

April 14, 1873 178,183

April as, 1873 190

April 30, 1873 268

May 16, 1873 284

May 28, 1873 96

May 29, 1873 241

May 31, 1873 238

June 4, 1873 .'.... 178

June 12, 1873 190,209

June 19, 1873 W

June 28, 1873 171,176

June 30, 1873 268

August 15, 1873 222,223,242

AugU8lx27, 1873 ^

September 4, 1873 230

October 17, 1873 206

October 23, 1873 268

October 27, 1873 1*»

October 29, 1873 1*5

October 31, 1873 1^

' November I, 1873 ^

November 7, 1873 387

November 8, 1873 33

November 12, 1873 277,887

November 14, 1873 387

November 15, 1873 387

November 17, 1873 387

November 19, 1873 387

November 20, 1873 387

December 9. 1873 ^^

December 10, 1873 *®

December 16, 1873 2ft^

December 31, 1873 ^

January 3, 1874 *®

January 7, 1874 ^

January 9, 1874 *

January 22, 1874 ^"^

January 28, 1874 ^^

January 30, 1874 ^^^

Febniary fi, 1874 *

February 11,1874 '^

7(M

INDEX.

I 8ECTI0X.

(ecretoiy, March 23.1874 402

Aprils, 1874 215

Aprill6,ltf74 271

April 21, 1874 65

May 9, 1874 271,280

May 19.1874 138

June 5, 1874 271

Jane 9. 1874 186,301

Jane 10, 1874..- 261

June 14, 1874 261

June 16, 1874 281

July 18,1874 92

July 28. 1874 391

July 29, 1874 225

Angust2, 1874 79

August 15, 1874 27U

August 18, 1874 - 413

Septeinber2, 1874 68

September 14, 1874 2;i»

September 15, 1874 242

October 27, 1874 192

November 14, 1874 413

November 17, 1874 402

November 18, 1874 130

November 21, 1874 204

November 24. 1874 ^.. 180

November 29, 1874 92

December 9. 1874 413

December 12.1874 213

December 22, 1874 in:>

%| Si 11 ll rlrV 4»| lOfflJ ««•««• •«•• •••• •«•• ••••*• ••»«*• «••• ••«• m m m m ^t^O

January 8, 1H75 174<t

January 14, 1875 192

January 19, 1^75 2<U

JanvarySl, 1875 121

January 22, 1875 32

February 14. 1875 241

February 10,1875 91

February 19, 1875 230

February 22, 1875 176

February 27, 1875 226

March 5. 1875 226

March 7, 1875 410

March 12, 1875 33

March 18, 1875 230

March 20, 1875 241

March 23, 1875 191

April 6, 1875 230

April 7, 1875 413

April 18, 1875 190

April 27, 1875 86

May 4, 1875 13

May 5. 1875 j 13

May 20, 1875 19-

765

IXDEX.

BEcnox.

FiSHj Secrotaryi June 2, 1675 ^. 230a

Jane 4, 1875 70,104,220

June 5, 1875 191

Junes, 1875 413

June 28, 1875 171

June 29, 1875 104

July 1, 1875 67,104

July 17, 1875 231

July 20, 1875 179

July 21, 1875 l»

July 22, 1875 182

September22, 1875 1*

Sepiember 27, 1875 94,104,402

October 1, 1875 104

October 5, 1875 IW

November4, 1875 '..... ^

Novembers, 1875 60,17^

November 15, 1875 ^

November 20, 1875 79

November 27, 1875 1 ^

December 1, 1875 32

December 11, 1875 IW

Deceml»er 20, 1875 174,220

December 27, Id-^S «»

December 30, 1875 224

January 11, 1876 60,2W

January 12, 1876 204

January IH, 1876 ®

January 19, 1876 125

January 20, 1876 ®

January 21, 1876 1^

February 21, 1876 270

March 4, 1876 231

April 7, 1876 ^^

April28, 1876 224«

May2, 1876 850,67

May 3, 1876 i '^

May 4, 1876 2J1

May 6, 1876 234

May 17, 1876 270

May 22, 1876 1^270

(conversation with Sir £. Thornton), May 27, 1876 ^

June 12, 1876 ^

June 13, 1876 ^

June 27, 1876 Jjj

July 18, 1876 U5,270

July 20, 1876 ^

August 5, 1876 ^

August 31, 1876 ^

September 18, 1876

October 20, 1876 !^

October 30, 1876 ^

November 1, 1876 17^'^*

November 3, 1676

766

INDEX.

SECTION.

, Secretary, November 13, 1876 267

December 7, 1876 13

December 8, 1876 268

December 21, 1876 204

December 26, 1876 9S

December 29, 1876 91

January 10, 1877 15

January 11,1877 93

January 29, 1877 402,410

February 8, 1877 39

February 13, 1877 138

February 14, 1877 , 125

February 16, 1877 174a, 183

February 21, 1877 137

[ERIKS :

Law of nations :

Fisbin^i^on high seas open toall 299

Soyereign of shore has jurisdiction of three-mile marine belt follow-
ing the sinuosities and indentations of the coast 300

NoTiheab4 Atlantic fisheries :

These were conquered from France by the New England colonies, act-
ing in co-operation with Great Britain, with whom they were af-
terwards held in common by such colonies 301

Treaty of peace (1783) was not a grant of independence, but was a
partition of the empire, the United States retaining a common

share in the fisheries 302

War of 1812 did not divest these rights 303

Treaty of 1818 recognized their existence and affirmed their continu-
ance 304

Under these treaties the three-miles belt follows the sinuosities and

indentations of the coast 305

Bay of Fnndy and other large bays are open seas 305a

Ports of entry are not affected by limitations imposed by treaty of

1818 306

British municipal legislation may restrict, but cannot expand, British

rights under these treaties 307

Great Britain, and not her provinces, is the sovereign to be dealt with

for infraction of such fishing rights 308

UfG BOATS OF ENEMY, not liable to capture 345

I cannot be questioned by any other than its own Government 327,408

how far protecting enemy's goods 342

Imparts nationality to ship 33

right of unregistered ship to carry 406/

saluting of, as a national apology 315

Uba, Confederate cruiser, seizure of, in 1864^ : 27, 399

^Oas, cession of, in liquidation of debts 161a, 315a, 318

effect on titles of cession of 4,5,6

negotiations for purchase of 161a

military posts in, attack on, in 1815, when under Spanish flag.... 50fr

it:R, Secretary of the Treasury, January 23, 1883 144

>j how far contraband 370

^C:8, minister at Buenos Ay res, February 13, 1826 309

^, when vacating a treaty 130

display of 321

767

INDEX.

Bicnox.

"Forced loans." imposition of, by belligerent* 230

Foreign allixxces, not the policy of the United States 45

BELLIGERENTS, mediation between 49

BUILT VESSELS, may be purchased by citiiens of the United States

andcan-y its flajj 410

CLAIMANT on United States Government, rules as to claim 214/

CORPORATIONS, rules as to 207

COURTS, undue discrimination by 230

distinctive practice of, cannot ordinarily be excepteil to.. . 2^

Governments, liability of, for injuries to citizens 189,21:1/

Jews, intercessions for ^

judgment, when a defense to a claim 238

LAW, when recognized by law of land 8

LAWS, not operating to affect naturalization 172, 17()

Foreign legations :

Executive the source of diplomatic authority "^

Foreign ministers to recognize the Secretary of State as the sole organ of

the Executive % *^

Continuity of foreign relations not broken by party changers ^

Executive discretion determines the withdrawal or renewal of missions

and ministers ^^

Non-acceptable minister may be refused ®

Not usual to ask as to aeceptability in advance ''''•'*

Conditions derogatory to the accrediting Government cannot be imposed. ^'

Minister mi8Condncting himself may be sent back ^

Mode of presentation and taking leave **

Incumbent continues until arrival of successor ^'

How far domestic change of Government operates to recall ^

Diplomatic grades '^

Citizens of country of reception not acceptahle ^

Dix)lomatic correspondence contideutini except hy order of Department. *

Confined to official business ^^

Usually in writing ^'^

Diplomatic agents to act uudtr instructions ^'

Communications from foreigners only to be received through diplomatic

representatives ^^

Diplomatic agents protected from process ;

Who are so privileged ^'•

Illegality of process against ^

Exemption from criminal prosecution ^"^

What attack on a minister is an international offense ^

And from personal indignity ^

And from taxes and imposts ^

Projierty protected • _

Free transit and communication with, secured *'

Privile^^ed from testifviuii "^

Cannot become business agents

Nor represent foreign Governments ^

Should reside at capital ^

Joint action with other diplomatic a^ieuts unadvisable • ^^^'

Duties as to archives *

Right of protection and asylum *

May extend protection to citizens of friendly coantries ^

Avoidance of political interference enjoined ...• *

7GS

INDEX.

Bf i;boation8 — Continaed. noiioir.

iitetj, faime88| and social oonfonnity expected :

Official intercoone 107

Social interoonne 107a

Conrt dress 107(

Expenses 107o

itingent fand and seoret-senrice money 108

-constitated missions illegal 109

lents not allowed 110

R powers:

ognition of belligerency 69

ognition of sovereignty 70

ti recognition determinable by Execntiye 71

retion, not colonization, the policy of the United States 72

ff PRIZE COURTS) conolasiyeness of Jurisdiction of 1... 329, 329a

RBLATI0X8, not to be affected by party changes • 78

RESIDENCE, when forfeiting nationality 176

sovEREiGXi when responsible for subject's conduct 21

SOVEREIGNS, when may sue in United States courts 249

!7BRS, expulsion of, rules as to « ••••• 206

allegiance of 171#

(See Citizenship.)

liability of, to taxation 204

naturalization of. (See Citizenship.)

passports cannot be granted to 192

rights of 201

(See Aliens; Citizenship.)

ruRB OF citizenship, effect of 176

.British minister, November 1, 1811 315fr

eBat, aggressions and spoliations in 308

bnth amendment of constitution does not exhaustiyely define

citizenship 173

AMENDMENT, effect of, ou citizenship 176,183

ii,Secretary,July31,1834 331

August 23, 1834 268

Noyember 11, 1834 - 45

November 29, 1834 268

December 26, 1834 118

March 5, 1835 79,107

AprU21,1835 191

August 6, 1835 72

# November 9, 1635 72

May 3, 1836 60s

May 10,1836 5O0

September 20, 1836 69

September 23, 1836 231

November 16, 1836 107^119

December 6, 1836 120

December 9, 1836 89

December 10, 1836 60s

January 20, 1837 331

March 17,1837 70

April 14, 1837 121

May 18, 1837 346,361

June20, 1837 118

J. Mia. 162— VOL. Ill 49 769

INDEX.

ocnosr.

FORSTnii Secretary, July 25, 1837 275

December2, 1837 84

December21, 1837 401

March 12, 1838 21

Aprill3, 1838 120

Febrnary 12, 1839 230

. February 13,1839 '. 230,342

August 7, 1889 268,275

September 17, 1839 227

October 12, 1839 115

April 1, 1840 lOTc

April 30, 1840 102

May 29, 1840 275

Junel3, 1840 241

July 5, 1840 K>

July 8, 1840 327

July 15, 1840 60

AugU8t26, 1840 S

FrancB, abrogation or modification of certain treaties with 137a

action of, in Mexico in 1861, objections to : 57,70

fisheries of, conquered in part by colonial forces ...^ 301

liability of, for Napoleon's spoliations 236

question of war with, in 1798 335

position of, as to Cuba 60

recognition of belligerency of United States during ReTolntionaiy

War 69

recognition of Confederate belligerency by 09

reyolutionary, recognition of 70

treaty relations with :

Treaty of 1778 148

Convention of 1800-'01 148*

Treaty of 1803 (cession of Louisiana) 14^

Subsequent treaties 1^

treaty of 1831, duty of, as to legislative ez^ution 131«

intervention iu 1861 in Mexico to compel payment of debt 319

AND THE UmTED STATES, mediation between, in 1835 49,318

AND Germany, in 1870, mediation of the United States between .. ^

Franchise, relation of, to naturalization 1^

Franklin, Doctor, letter, July 20, 1778 11^

agency in treaty of peace 3tB

" F ranklin's Map '^ of Northeast Territory, controversies as to \ ^

Fraudulent naturalization, questions as to 1'^

Free discussion not the subject of Executive interference ^

Freedom op press as to foreign Governments 47,470,387

Free navigation of rivers ^

' * Free ships and free goods, " how far maxim operates ^

French claims on Mexico (1860) 58,318

revolution in 1796, sympathy with, by Washington ^''

does not vacate prior French treaties ^^

SPOiLATioN claims .* 238,2*^

S0«

Frontier, Mexican, marauders may be pursued onto

ada,

770

Canada, position as to ^

INDEX.

8 FROM JUSTICE, EXTRADITION OF : 8ECTI02r«

arily no extraditionwithont treaty 268

nd confined to treaty offenses 2GD

to be only for offenses enumerated in treaty 070

) xnnst have been within jarisdiction of demanding state :

nland 271

n shipboard 271a

tradition for political offenses.... ..1 272

fense that defendant is citizen of asylnm state 271^

be specific foreign demand 274

goyemments cannot extradite 275

ice as to arrest :

reliminary execntive mandate 276

ormof complaint and warrant 276a

[ode of arresting and detention 276^

tnce on which process will be granted 277

ice as to review 27&

ice as to habeas earpw 279

ice as to surrender 280

uses 281

lea retrospective 282

8, POLITICAL, hospitality to 48

not delivered up on extradition 272

lay of, rights of fishing in 305a

nnrSEN, Secretary, January 9, 1882 45,59

February 15, 1882 37

February 24, 1882 4J,59

February 28, 1882 107

April 12, 1882 172a

AprillS, 1882 55

April25, 1882 190

May 8, 1882 150/

May 23, 1882 276

May25. 1882 :J6

May31, 1882 &t

June 6, 1882 13,144

• June 14, 1882 189-

June 18, 1882 238

June 19, 1882 176,204

June20, 1882 67

June 26, 1882 41^

June 27, 1882 231,232

July 1, 1882 177

July24, 1882 172a

Augusts, 1882 206

August 4, 1882 64

Augu8t8, 1882 183

'September 22, 1882 37, 174a

September 25, 1882 220

Octobers, 18=2 230

October 19, 1882 175

October 27, 1882 268

November 10, 1882 37

November 15, 1882 206

November 27, 1882 268

771

INDEX.

oonoi.

FSBUNaHUTSlir, Secretary, Noyember 29, 1882 97

December 4y 1882 139,9QB

December 15, 1682 189

December 19, 1682 • ITS

January 4, 1883 • 67

January J2, 1883 37

January 16, 1883 835,848

January 18, 1863 176

January20, 1883 861

January 31, 1883... » 37

February 5, 1883 ««l

February 19, 1883 391

February 23, 1883 lU

February 24, 1883 M2

February 26, 1683 «r

February 28, 1883 »

March 6, 1663 M5,»l

March?, 1883 ^

March8,1883 67

March 12, 1863 W

March 16.1883 35

March20, 1883 906

March 28, 1883 VBS

Mareh29,1883 413

March 30, 1682 238

«»r March31, 1883 9St,VB6

April 2, 1883 ^

April3,1883 81^

April 9, 1863 1®

April 10, 1663 18

April 16, 1663 18

April 17, 1683 2»4

April 23, 1883 17»

May 3, 1883 230

May 5, 1883 IfiV

June 4, 18S3 .' 1»

June7, 1883 888

June 15, 1883 1®

June 20, 1883 '^

June 25. 1863 ^

June 27, 1883 ^

June 28, 1883 ^

July 10, 1883 93

July 26, 1883 »i^

July 27, 1883 880

July 28, 1683 ^ ^

August 13, 1883 1^!

August 25, 1883 »•*

August 28, 1883 ®

September 15, 1883 |?

October 15, 1683 ^

October 17, 1883 ^

October 18, 1883 ^

November 9, 1883 ^*

772

INDEX.

axcnoK.

, Secretary, November 13, 1683 35a

November 15, 1883 59,62,241

November 22, 1883 150/

November 27, 1883 171

December4, 1883 56

December 5, 1883 9

December 6, 1883 G2

December 11, 1883 52

December 15, 1883 104,361,381

December 16^^883 '. 171

December 19, 1883 i. 204 *

December 20, 1883 261

December 22, 1883 182

December 29, 1883 59

January 12, 1884 232,410

January 17, 1884 232

January 22, 1884 67

January 24, 1884 176

January 31, 1884 88,186

February 1, 1884 72

February 6, 1884 , 67

February 11, 1884 220

February 13, l'-84 268

February 18, 1884 38

February 19, 1884 234

February 21, 1884 184

February 25, 1884 37

February 27, 1884 171,176

March5, 1884 230

March 10, 1884 79

March 12, 1884 194

March 14, 18s4 15,35a

March 21, 1884 67

March 25, 1884 175,189

March27, 1884 54

AprU 1,1884 38

April 3, 1884 281,293

AprU 4, 1884 242

Aprils, 1884 99

April 7, 1884 38

April 17, 1884 15

April le, 1884 223,226,361a

April28, 1884 293

April30, 1884 402

May 2, 1884 134

May 12, 1884 123

May 16, 1884 20

May 17, 1884 38

May 31, 1884 165

June 11, 1884 68

June23, 1884 172a

June 28, 1884 134

July2,ie84 214

JulylO, J884 30

773

INDEX.

SEcnox.

EtaUKOnUTSXKf.SeoTetary, July lly 1834 30

July 15, 1884 «70

July 19, 1884 ?..15q/;293

July25, 1884 146

July28, 1884 206

AugU8t8. 1884 A 193

August 22, 1884 66

August 27, 1884 121

September 27, 1884 191

October 17,1184 51

October 18, 1884 68

October 22,1884 •. 189

October 23,1884 410

October 24,1884 165

November 4, 1884 172i

November 22, 1884 2

November 24, 1884 S6

Deceml>er 6, 1884 216,231

December 10, 1884 203

December 11, 1884 806

December 19, lf:^4 ^ 413

December 20, 1884 1521

December 30, 1884 88

Januarys, 1885...: ^

January 10, 1885 1®

January 15, 188:> 185

January 19, 1885 191,1» ,

February 2, 1885 2»

February 7, 1885 184

February 10, 1885 ^

February 17, 18^ 1®

February 20, 1885 87

Oallatik, Secretary of Treasury, letter, April 24, 1810 319

miniater to Bnasia, June 19, 1814 ^

oommiasloner at Ghent ^

minlBter to France, November 21, 1816 389

January 20, 1817 889

November 5, 1818 ^

June28, 1821 7,32,50i

February 11, 1824 * 230,236»940

February 19, 1824 ^®

November 27, 1826 ^^

minister to Great Britain, December 22, 1826 ^

letterAugust6,1828 '^

August 9, 1828 873*

Januarys, 1836 ^

January 5, 1838 '^^

OiJLVESTOX, attack in 1817 on, when claimed by Spain ^

CfASKELL dt AVard, proceedings against, in Mexico ^^

Oeket, French minister, conduct in the United States 84,106,1^

letters from '^'^^

774 .

INDEX.

SECTION.

Aambtroxo (brig), qneetions relating to Sffl^ 227, 228, 399, 401

OKTEiaiON, 08 to mitigation of war, aooeas of United States to.. . 348

RiBUNAL, how constituted 150^

action of^asto neutral duties 402a

Senry), complaint of arrest of, in Ireland 230

lOVEHNMENT, actlou of, as to Samoan Islands 63

IN France, protection of, in Franco-Gorman war lOi

, treaties of the United States with 149

effect of naturalization treaty with 178

expulsion of United States citizens by 206

AND France, mediation of the United States between, in 1870. .. 49

>sition of, in French negotiations of 1797-'9d 148a

tter from, January 17, 1798 342

LEATT OF, character of..;. 150o

how far affecting claims on Great Britain 240

SLANDS, foreign relations of 63

ICES, meaning of term 233

distinguished from mediation 49

may be interposed to enforce contracts 231-2-3

rEMY's, seizure of. (See War) 342

ENT, recognition of, as belligerent 69

as sovereign 70

change of, does not vacate prior treaties 137

liable on predecessor's obligations 236

liability of, for failure to present international claims 248

TREATY, when to go into effect : 132

' meaning of term in treaty 133

resident, annual message, 1869 60

special message, June 13, 1870 60

neutrality proclamation, August 22, 1870 402

Octobers, 1870 402

annual message, 1870 30,49,57,61,67,70,105,319

1871 ; 60

1873 125,171,190,327

special message, January 5, 1874 327

annual message, 1874 60,67,171,174a

1875 60, 69, 174a, 327

special message, June 20, 1876 270

annual message, 1876 174a

special message, December 23, 1876 270

JE, Lord, position of, as to Clayton-Bul wer treaty 150/

EtiTAiN, treaties with :

treaty of 1783 (peace) 150

Jay's treaty, 1794 150a

Monroe-Finkney negotiations. 150d

treaty of Ghent, 1814 150o

conventions of 1815, 1818 150<I

Ashburton treaty, 1842 150d

Clayton-Bulwer treaty, 1850 150/

treaty of Washington, 1871 150^

charge of undue discrimination by courts of 230

action in McLeod's case. (See McLeod.)
in Fishery case. (See Fisheries.)

775

INDEX.

fiicnox.
Gbkat BrttaiHi action as to Mosqaito protectorate. (See Clatton-Bul-

TnSR TREATY, MOSQUITO C0X7XTRT.)

in Alabama case 40Sa

oontroveray of, with.Nicaragna 296

internationally responsible for Canadian aggressions and

spoliations 306

bow far relinqnishing dominion over Central America 150/

mediation in 1835 between France and tbe United States . ..49,318

modifications or abrogations of certain treaties with 137a

position of, astoCaba 60

recognition of Confederate belligerency by 69

claims against, for discrimination against United States cit-
izens 189

(See War, Enemy's Goods.)

Greece, revolntionin, sympathy with, in 1823 47a

Greztville, Lord, letter, March 27, 1799. 171

GRETHOXTin), schooner, seizoceof, in 1793 87

Greytowk, attack on, by United States 50(r,2S4a,315tf

GuADELUPE-HiDALao TREATY, negotiation of 154

effect of, on titles 4,6,154

as to Mexican territorial waters 32

GuAKO Islands:

Title in international law :

Based on discovery 319

Title nnder United States Statute :

Discovery of guano deposits gives title.. « 311

Aves Islands 318

Lobos Islands 313

Other islands 314

GUAP, island of, foreign relations of 63

Guarantee, in treaty, not annulled by change of Government ^

of West India Islands to France w 148,340,848

by Colombia office transit of Isthmus 230,888/

-by United States, of neutrality in Isthmus, effect of 145,15(^,887/

Guatemala, hostile action of Mexico towards 56

terminationoftreaty of 1849 with 137a

Guerrillas, how far entitled to belligerent rights ^

MM.9

Habeas corpus, power of Federal courts to issue, in international oases.... ^

right to suspend, cannot be questioned by foreign power.. 839i

in extradition cases ^

Hale, Assistant Secretary, May 8, 1872 ^

May 21, 1872 ^1

May 22, 1872 ^^

July 13, 1872 ^^

Halifax tisbery award, action as to ^

incidents of. 304,305/

Hamilton, A., Secretary of the Treasury, report, November 19, 1792 ^

letter, April 1, 1793 ^

May 13, 1793 *!J

circular, August 4, 1793 383,301,3(»

776

INDEX.

SECTION.

Xy A., Secretary of the Treasary, opinion as to French treaty 137

essays of "Pacificas" 148,318,402

"Camillas" 150a

position of, as to foreign Judgments 329a

Tiews as to effect of French revolation on prior treaties. 148, 248, 401 Jf

H., speech, Angast 3, 1852 306a

ic BxPUBUC, treaties with 151

importance of port of 60

relation of the United States to 62

treaties with 151a

protection of missionaries in 54

o-consnl-general at Beirut, October 11, 1871 54

V7., letter, January 6, 1815 150o

February 15, 1815 150o

Lstant Secretary, July 7, 1880 33a

August 13, 1880 144

August 16, 1880 125

August23, 1880 144

October26, 1880 125

February 24. 1881 13

^resident, annual message, 1877 58,60,63,70,220

1878 58,63

1879 49, 50«, 63, 145, 308

special message, March 8, 1880 287

annual message, 1880 49, 50«, 55, 63, 145

special message, February 28, 1881 16

)lations of the United States to 61

lediation in affairs of. 49

Aim against in Van Bokkelen's case for maltreatment 230

D8, when indicating territorial Jurisdiction over sea 28

I, foreign intercession for 55

claims for undue discrimination against 189

lus," essays of, by Madison 148,402

s, frigate, case of murder on 33a

L8, soYereignty over 26

.FISHERIES, open to all 299

LLIAKGE," character and action of 67

nature and object of 45

position of, as to Cuba 60

(VEBKMENT, liability for failure to present claim 248

LS, bombardment of port of Omoa, in, by British in 1873 223

isthmian relations of 135,296

treaty relations with 146

, consul, action of, at Paraguay 321

how far contraband 372

DBS, inauguration of : 333/

effect of cessation of 356

r Bepresentatives, how far bound to pass act executing treaty.. . 131a

[NO ACT," British effect of. 32

r., mission to San Domingo 61

jm LETTER, by Mr. Webster 47

AN iia>EPENDEKCE, question of recognition of 70

r, agency to obtain information in, in 1849 47

>, how far imparting nationality to wife 186

Assistant Secretary, May 22, 1852 56

July 29, 1852 "^W^

111

XNDEX.

SEcnox.

HUKTER, Assistunt Secretary, May 28, 1855 118

October 4, 1865 104

July 1,1871 68

Augustll, 1873 113

August 26, 1875 104

September 10, 1875 104

September 21, 1879 291

Octobers, 1879 70

September 28, 1880 271*

•
I.

Ildefokso, treatt of, questions as to ' 161/

IiXEOiTiMATB CHILDREN, nationality of. (See Childrsk, Infants.)

Immigration, Chinese, distinctiye character of G7

Impeachment of naturalization, how far permissible 174

Impressment, history and abandonment of 331

intpO service of aliens, rule as to 202

Inadvertence, when an excuse for violation of port law 38

''Incendiary publications,'' as to foreign affairs, Executive cannot inter-
fere with 86

Indemnity, modes of :

Apology and saluting flag 315

Cession of territory 315«

Case of Chesapeake and Leopard 1 315^

Case of Dartmoor prisoners. 315c

Case of Prometheus *. 3I5i

Arbitration 316

^Vithdrawal of diplomatic relations 317

Retorsion and reprisal .' 318

Non-intercourse 319

Embargo 320

Display of force 321

Independence of the United States, effect of on allegiance 187,186

recognition of by France ^^

OF INSURGENTS, recognition of. ^^

Indian titles, effectof ^

warfare, penalties for engaging in 348«

Indians, citizenship of 177,196,208/

North American, peculiar nationality of ^

predatory, should be kept back by sovereign 1^^

Infants :

Bom in the United States generally citizens ^^

So of children of naturalized citizens ^^

So of children bom abroad to ci tizens of the United States ^^

Information ABROAD, agencies as to ^

INGRAHAM, Commodore, action of, in Eoszta's case ^

Inhabitants of territory, effectof its conquest on

Inland seas, freedom of c... r^

Insane citizens abroad, care of, not assumed by Government ^\^

Insurgents, Cuban, action of the United States as to ^

foreign, sympathy with ^^»^^*'^^ #

liability of Government for spoliations by ^'

when entitled to recognition as belligerents 09,70,35

778

INDEX.

SECTION.

rROSsrrs, effect of recognition as belligerents in relioving parent state

from responsibility for tliem 63

effect of recognition as belligerents in relloying them from ptin-

isliment, except nnder laws of war • 348.381

rBRBcnoN, foreign, agencies to inqnire as to 47

CBCKSSION for release of ]x>litical offenders..... 62

otcOUBSE, suspension uf.. i 319

ERE6T, when dneon international claims 246

SRKATiONAi. ABBiTRATiON, characteristics and effect of 316

ULW, part of law of land 8

TRIBUNALS, effect of awards of. 220,221,316

:S0GEA2aC ROUTES 287^

CBFRBTATION OF TREATY, ruleS for .• i 133

EBVENTIOX :

Gfeneral mle is non-intervention 45

Exceptions :

Belief and protection of citizens abroad 46

' Agencies to obtain information as to jiending insurrection 47

Sympathy with liberal political struggles 47a

Hospitality to political refugees 48

Mediation 49

Necessity, as where marauders can be checked only by such inter-
vention 50

Amelia Island 50a

Pensacola and Florida posts 50d

Steamboat Caroline 50o

Greytown 50d

Border raiders 50e

Explorations in barbarous lands (e. g,, the Congo) 51

Intercession in extreme cases of political offenders 52

International courts in semi-civilized or barbarous lands 53

Good offices for missionaries abroad 54

. Good offices for persecuted Jews 55

Kon-prohibition of publications or subscriptions in aid of political

action abroad 56

Charitable contribntions abroad 56a

Intervention of £nroi>ean sovereigns in affairs of this continent disaj)-

' proved^Monroe doctrine 57

Special applications of doctrine :

Mexico i 58

Peru 59

Cuba CO

San Domingo and Hayti 61

Danish West Indies 61a

nawaii (Sandwich Islands) 62

Samoa, Caroline, and other Pacific Islands 63

Corea 64

Falkland Islands 65

Liberia 66

China C7

Japan 68

Turkey, Tripoli, and Tunis 68a

Bocognition of belligerency 69

sovereignty 70

Such recognition determinable by Executive 71

7TO

INDEX.

»»

ucnoi.
Interventiox — Continned.

AccretioD, not colonization, the policy of the United States H

(Qnestions relative to the iBthmaa of Panama are considered, 287 ff.)

Ibsland, relief to, daring famine 56i

charge of nndne discrimination in courts of 830

Islands, Guano :

Title in international law :

Based on discovery 310

Title nnder United States statute :

Discovery of gnano deposits gives title 311

Aves Islands 318

Lobos Islands r 313

Other islands 314

ISLANI>8, TnXlSTO 30

Ibsaelitbs, persecuted, intercession for 55

claim for undue discrimination against 19

Isthmus of Panama: .

Transit over, by international law :

Such transit cannot rightfully be closed 887

Transit over by treaty with New Granada:

Limitations of treaty 888

Continuance of 881^

Effect of guarantee of under treaty:

Such guarantee binds Colombia 890

Does not guarantee against changes of Government 891

Eolations to particular countries:

Colombia 898

Nicaragua 893

Costa Rica 894

The Mosquito Country and Belize 896

Honduras 898

Venezuela 897

How affected by Clayton-Bulwer treaty IW

Free passage over, insisted on Itt

Proposed neutralization of canal on ...• ^

Italy, distinctive rule as to naturalization •• 171/

termination of convention of 1868, with ^*

Jackson, F. J., British minister, circumstances relating to 84,107,107«»^^

Jackson, Andrew, General, action of, in case of Arbuthnot and Ambrister.. ^

January 6, 1818 8*

his course in attacking Florida posts in 1815...* ^

President, action of, as to claims on France ^

annual message, 1834 ^ «

1835 ....50,236,818

special message, February 8, 1836 ^

February 23, 1836 ^

December 21, 1836 ^^

Japan, relation of the United States to ®

treaty engagements with • ^^

amendment or termination of certain treaties with ^f'

Japanese INDEMNITY, provisions as to ^^

780

INDEX.

BBOTXON.

CBATT, diaonsBion as to daty of House to ratify 131a

sflgotiatioDS and features of 150a

ruliugsof courtsas to 150a

I£ap,'' oontroyersy as to 150a

lOK, Seeretaty, April 24, 1790 78

Noyember 29, 1791 150

Januar723, 1792 108

Harchl8,1792 30,133,134,366

March 22. 1792 269.271a

May 29, 1792 246

Junell, 1792 - 331

July 11, 1792 107

October 14, 1792 82

Noyeml)er7, 1792 70

March2, 1793 ?. 46

March 12, 1793 137

March 13, 1793 241

March 15, 1793 62

March20, 1793 89a

April20, 1793 402

April26, 1793 1 402

April 28, 1793 133,137

May 3, 1793 410

May 7, 1793 331,370

May 13, 1793 402

May 15, 1793 11a, 329, 391, 395, 396

May 16, 1793 318

June 4, 1793 331

Junes, 1793 8,203,395,396,398,402

June 12, 1793 396

June 13, 1793 410

June 14, 1793 399

June 17, 1793 396

June 19, 1793 150

June 30, 1793 45

July 10, 1793 79

July 14, 1793 342,402

August 3, 1793 396

August 16, 1793 . ..28, 124, 176, 329, 342, 350, 383, 395, 395a. 402

August 31, 1793 228

September 2, 1793 117

September 6, 1793 401

September 7, 1793 370

September 9, 1793 241,394,399

September 12, 1793 268

September 22, 1793 370

October3, 1793 116

Noyember8, 1793..: 32

November 10, 1793 32, 402

November 14, 3 400

November 22, 1793 79

November 30, 1793 397

December 2, 1793 89

December 9, 1793 82,107,114

781

INDEX.

8ECn05.

Jkfterson, Secretary, December 17, 1793 341

December 26, 1793 241

letter, March 21, 1795 131«

President, letter, August 28, 1801 394

September 9, 1801 342

October 3, 1801 107

annual message, 1601 335

letter, April 18, 1802 72

annual message, 1803 72,402

letter, Januarys, 1804 107«

February 9, 1804 IWfl

annual message, 1804 350

December 6,1805 333

annual message, 1805 321,399

special me&age, January 17, 1806 331, 388

letter, December 4, 1806 107«

Marcli29,1807 : 130*

April2,1807 131

April 21, 1807 401

message, October 27, 1807 38S

letter, Marcb 1D,1808 130,131

November 15, 1808 318

letter, April 27, 1809

July 4,1812 385

January 1,1815 385

March 23, 1815 ^ 331

July 15, 1815 331

September 17, 1818 50i

February 24, 1823 1 342

letter, June 11, 1823..... 45,60

June 23, 1823 60

October 24, 1823 45,57

July 14, 1824.- 320

views of, 08 to European interference in South American iude-

dependence ^^

Jxws, claims for undue discrimination against 55,189

persecuted, intercession for ^

Juarez, government of, in Mexico, relations of United States to ^

recognition of, as President of Mexico in 1864 ^

Judgment of naturalization, how far impeachable 1

Judicial FUNCTIONS of consuls ; ^

Judiciary cannot control Executive treaty-making powers ^^

follows Executive in detoiinining questions of recognition of for-
eign powers "^

not to control Executive in foreign affairs ^

office of^ in construing treaty ^*

takes Executive view as to national boundaries • ^

when to be applied to on claims before diplomatic intervention.. ^*'

when action of, does not bar claim *^*

Judgment of courts on international law, how far binding Execa-

tive 71,78,122,13O,238,320tf,3^

Jurisdiction :

Territorial sovereign supremo

Discovery the basis of title

INDEX.

SECTION.

JumsDicnoN^Contiiiaed.

Conqn^ied territory subject to temporary military control 3

Conquered, annexed, or divided territory retains its prior mnnioipal in-
stitutions 4

Benefits and burdens pass to conquering or annexing sovereign 5

But sucb country not affected by acts of prior sovereign after cession.. . 5a

Colonies becoming independent retain their boundaries and other rights. G

Title of de facto Gk>vomment to obedience 7

Law of nations part of law of land 8

Municipal laws not extraterritorial 9

Distinctive rule as to taxes 10

Distinctions as to Federal Constitution 11

Territory as a rule inviolable :

General principles 11a

Recruiting in foreign state forbidden 12

« Permission requisite for passage of foreign troops 13

And so of foreign seizure of persons or property 14

jurisdiction of crime 15

sending of paupers and criminals 16

£xccx>tion as to necessity 17

foreign sovereigns, foreign ministers, and foreign troops. 17a

uncivilized lands 17^

Duty of sovereign to restrain agencies likely to injure another country :

Predatory Indians 18

Other marauders 19

Diversion or obstruction of water 20

When harm is done by order of foreign sovereign, such sovereign is the

accountable party 21

Territorial boundaries determined by political, not Judicial action 22

Ilighseas, sovereignty over 26

Territorial waters, privileges of 27

Bays .-.-- 28

Straits 29

Kivers 30

Lakes and inland seas 31

Marginal belt of sea 32

Ship nationalized by flag 33

Crimes at sea subject to country of flag 33a

Ports open to all nations 3-1

Merchant vessels subject to police law of port 35

Crimes on such vessels, how far subject to port laws 35a

Not so as to public ships 36

Oppressive port exactions 37

Exemptions from stress of weather, vis major , or inadvertence 3d

Arming merchant vessels 3D

Neutralized waters ^.... 40

CJitxsDicnox, essentia.1 to extradition process 271

C7CTICE, denial of, claims based on 230,241/

-AjssoN, minister at Berlin, his action as to the Congo 51

letter, April 23, 1885 370

Yerd Island, title to 2

783

INDEX.

ncnoi.

Kidnapping, abroad, how far municipally cognizable ,... 14

King, Horatio, on <<Trent affair" 373a,374

Bnfos, Bpeeoh on fishery question 301

Kosciusko's DOMiciL, discussion as to 199

KossxTTH. reception of, in the United Statefi and his prior conduct 48

Koszta's CASE, explanation of 175,198

KoszTA, his claim to protection based on domicil 196

La Abea CLAIMS, action of Goyemment as to 920

IiABOBBBS, Chinese, position of 67

La Fatbttb, intercession for release of &9

Lake Michigan, freedom of 30

Lakbs, free navigation of 31

neutralization of 40

Land, soyebeignty over :

Supremacy of territorial sovereign 1

Discovery the basis of title S

Government of conquered territory .•••.•.. 3

Conquered, annexed, or divided territory retains its prior municipal insti*

tions ^

Annexation subject to benefits and burdens «. ^

But not to acts of prior sovereign after cession ^

Colonies becoming independent retain their boundaries and other rights. 6

Title of <20/aoto Government to obedience 7

Law of nations part of law of land 6

Municipal laws not extraterritorial..... ^

Distinctive rule as to taxes ....• ^^

Territory as a rule inviolable :

General principles ^^*

Recruiting in foreign state forbidden ^

Permission requisite for passage of foreign troops ^

And so of foreign seizure of persons or properi;y ^^

foreign Jurisdiction of crime ^^

foreign sending of paupers and criminals ^^

Exception as to necessity ^^

Foreign sovereigns, foreigzkministers, and foreign troops may be extn*

territorial ^'^*

DiAtinction as to uncivilized lauds ^^

Duty of sovereign to restrain agencies likely to iigure another countiy:

Predatory Indians - ^

Other marauders ^

Diversion or obstruction of water ^

When harm is done by order of foreign sovereign such sovereign is the

accountable party "

Territorial boundaries determined by political, not Judicial action ^

Land, subject to lexHtua ^

La Plata River, freedom of ^

Law OP NATIONS, part of law of land ^

Lawrence's Case ^

League, MARINE, privileges of ^

LegarA, Secretary, June 9, 1843 *

June 12, 1843 ^

June 13, 1843 ®

784

INDEX.

SECTION.

authority ofy as to passports 191

diplomatic. (See DiPLOacATic Agents.)

!Xf manicipal, has no extraterritorial effect 9

when necessary to execute treaty 131a

may municipally annnl treaties 138

(See CONSTITOTION.)

', how far necessary to Government 6

ttackof,on Chesapeake 315^,331

GATORY 413

low far recognizing foreign law 8

ipplicable to real estate 234

roREiGN POWEBSi Jurisdiction of 56

t«mational relations of 66

' SPEECH cannot be interfered with by Executive 56

as t6 foreign Governments not precluded 47. 47a, 387, 561

3 TRADE, operative in war 337,388

, none as to time in respect to foreign claims 239

resident, as to Maximilian's position in Mexico 58

Monroe doctrine 57

recognition of Confederate belligerency 69

prize courts 328

blockade 359

neutrality \ 404

piracy 381

arrest of Masonand Slidell 374

position as to raiders across Canada borders 50d

emancipation proclamation 338

,E., Secretary, June 8, 1831 121

June 13, 1831 : 138

Juue26, 1831 192

Augustl,1831 268

August5,ia31 96

January6, 1832 134

January 13, 1832 96

January26, 1832 65

April 2, 1832 104

Aprils, 1832 50

Junel2, 1832 , 4

July 21, 1832 316

November 5, 1832 133

November22, 1832 342

December 4, 1832 389

January 2, 1633 79

January31, 1833 107o

April 30. 1833 70,316

June 3, 1833 133,138

minister to France, 1834 107o

negotiations in Paris as to treaty of 1831 318

R. E., Secretary, January 7, 1782, to Dr. Franklin, on fishery ques-
tion ^ 301

minister to Franco, position of in Louisiana negotiations. . 148&

s, when a defense to a claim ■. 238

r (cruiser), collision of with frigate President . 327

be made to belligerent 390

Jlis. 1C2— VOL. Ill 50 786

INDEX.

SECTION.

LoBOS Islands (Qaano) 313

Local allegiance, effect of 203

LAWS have no extraterritorial force 9

Logan (Dr. George), circumstances of Lis mission to France 109

Louis Napoleon, decision of in case of brig General Armstrong 227

Louis Philippe, action of as to claims of United States against France 316

Louisiana, cession of, treaty for USi

discnasion as to daty of Honse of Representatives to approTe

treaty 131a

possession of by France incompatible witli the policy of the

United States 72

effect of cession of, on its prior law 4,5,6

Mackintosh, Sir J., speech as to burning of Washington 349

Madison, letter, December 20, 1795 181i

December 27, 1795 13U

JanuAry 26, 1796 131«

January 31, 1796 IJli

March 13, 1796 131i

April!, 1796 13U

April 11,1796 13U

Mayl, 1796 131i

January 2, 1797 138

Secretary, October25, 1801 360,361

Mayl, 1802 72

May 11, 1802 72,1M

October 25, 1802 j»5,408

March 2, 1803 n

May20, 1803 208

May 28, 1803 72

August 20, 1803 :... 148i

October 27, 1803 .^ 361

December 4, 1803 361

December26, 1803 1W«

Januarys, 1804 325,331,361,368

February 6.1804 • 1®

February 9, 1804 107«

February 16,1804 1^«

July 21,1804 l^*

October 17, 1804 »

October 25, 1804 ^

October26, 1804 ^

November 9, 1804 1^

Aprill2, 1805 389

January 25, 1806 325, 348, 360, 368, 375, 382, 3«

MarchlO, 1806 *6»

March 14,1806 342,4«

May 17, 1806 ^^

November 11,1806... ^

February 3, 1807 *^'!!!

March 2, 1808 ^

March 18, 1808 ^

786

INDEX.

SBCnOK.

ION, Secretary, April 4, 1808 3155

President, letter, June 20, 1809 84

Angu8t3,1809 84

August 16, 1809 84

September.il, 1809 84

Annnal Message, 1809 319

letter, January 20, 1810 84

May23»1810 84

statement, April, 1811 84

special message February 25, 1815 331

letter, ApriU, 1815 331

September 12, 1815 91

message, December 26, 1816 402

letter. May 6; 1822 70,78

October 30, 1823 57

November 1, 1823 57

December 26, 1823 45

his views as to effect of French Revolution on prior treaties.. 148, 248, 401^

essays of Helvidiusby 402

position as to Great Britain prior to war of 1812 150o

views of as to European interference in South American independ-
ence 57

views of, as to duty of legislating to effect Jay's treaty 131o

LLAN, Straits of, not territorial waters 29

METAN COUNTRIES, Consular Jurisdiction in 125

asylum in 104

(5ee Turkey, Ottoman Porte.)

:, controversy as to boundary of I5O0

esbury, Lord, position of, as toright of search 327

letter, June *JG, 1856 107&

lEATMENT ABROAD ov CITIZENS, liability of foreign Government for. .. 189

(F-WAB, in foreign port, not subject to law of port 36

, A.Dudley, agency to Hungary in 1849 47

F No RTiiEASTEN Territory, used by commissioners of 1763, controversy

y 150«

UDERS, border, should be restrained by sovereign 19

driving across the border 50

right to pursue extraterritorially 50e

T, Secretary, April 19, 1853 189

June 9, 1853 224a, 295

June 17, 1853 295

June 20, 1853 13,145

July 2, 1853 60,295

July 18, 1853 29

July 23, 1853 60

August 8, 1853 30,157

August 26, 1853 175

September20, 1853 9

September 22, 1853 62,157

September26, 1853 198

September27, 1853 35a

October 12, 1853 13

November7, 1853 115

November 16, 1853 180

787

INDEX.

ucnox.

MarcTi S«crotary, December 7, 1853 ^ 195

Deeemberie, 1853 OS

December 22, 1853 89

December 27, 1853 296

December 29, 1853 115

Jannary 10, 1854 189

January 19, 1854 123

January 24, 1854 IM

February 3, 1854 145

February 8. 1854 .♦ 69

February 15, 1854 342

February 16, 1854 145

February 18, 1854 m

Februnry21, 1854 203

February24, 1854 213

March 11, 1854 189

March IG, 1854 391

March 17, 1854 198

April 4, 1854 62

Aprill3, 1854 193,325,342,361,385,388

April 14, 1854 , 342

May 9, 1854 343

May23/1854 174*

May 27, 1854 \»

May 30, 1854 ttO

June 6, 1854 l&i

June 9, 1854 224i

June 19, 1854 Of

June 29, 1854 140

July 3,1854 28

July 7, 1854 1S8

July 25, 1654 48

August 2, 1854 »

Augn8t7, 1854 3tf

. Anguflt8, 1854 »«

August 16, ia54 IW

September 7, 1854 184

September 11, 1854 98;138

September 14, 1854 I«

September 18, 1854 890

September 27, 1854 ®

October 4, 1854 151

October 20, 1K>4 ^

November 13, 1854 ^

November 15, 1854 138

December9, 1854 ^

January 18, 1856 , 120,1*

January24, 1856 5^'

January 27, 1855 ®

January 31, 1855 ®

February 4, 1855 1»,8^

Marchl2, 1855 ^

March27, 1855 ^

March28,1865 ^

788

INDEX.

SBCnON.

Secretary, April 6, 1355 9,180,230

May 11,1855 104

May 14, 1855 402

May 24, 1855 190,219

June 9, 1855 84

June 20, 1855 231

June 29, 1855 402

July 16, 1855 268

July 20, 1855 203

August 6, 1855 295

August 21, 1855 121

August 24, 1855 230a

August 31, 1855 • 35a

September 1, 1855 : 110

Septembers, 1855 12

September21, 1855 63

Octobers, 1855 67,282

October 29, 1855 327

October 31. 1855 391

November 3, 1855 29

November 8, 1855 106

November 10, 1855 181

November 16, ia'6 230

December 10, 1855 402

December 28, 1855 12

January 10, 1856 220

January 12, 1856 1 213

February 4, 1856 50«

February 19. 1856 29,393,403.410

March 3, 1856 234

March 22, 1856 206,213

Marcb26,1856 173

April 6, 1856 '. 230a

April 8, 1856 90

April 10, 1856 245

April 19, 1856 35a

April25,1856 402

May 3, 1856 287

May 5, 1856 29

May 8, 1856 395a

May23,185C 88

May 27, 1856 12

June 4, 1856 145

July 3,1856 145

Julyl4,l>«6 342,3^

July 17. 1856 231

July25,1856 361

July26,lSi6 0,7,208,295

July28,1856 383,365

July29,1850 3«>

August 21, 1856 99

August26, 1856 215

August 29, 1856 342

September 8, 1856 33a

. 789

INDEX.

SECnON.

Marct, Secretary, September 24, 1856 70

October 28, 1856 70

Decemberl, 1856 241

December 3, 1856 v 145

Decembers, 1856 135,138

December 22, 1856 79

December 31, 1856 145

January 12, 1857 312

February 2, 1857 67

February 3, 1857 313

February 19, 1857 181

February 26, 1857 284,284i

Marine BELT, extent of 30,32,300

questions as to Jurisdiction over S6

extent of, claimed by Spain as to Cuba 327

Mabitimb LAW, how far part of law of land 8

Mabque and reprisal. {See Privateers.)
Marriage :

Mode of solemnization :

At common law, consensual marriage valid 28)

Solemnization valid at place of marriage is valid everywhere 261

Local prescriptions as to form have no extraterritorial force 96

Matrimonial capacity :

Determined by national polcy 263

Marriedwomen, nationality of 18S

" Marshall archipelago," foreign relations of 63

BIarshall, J., minister to France, January 17, 1798 342

position of, in French negotiations of 17!97-'98 148*

speech of, Bobbins' case.. 27U

Secretary, Septembers, 1800 329

September 20, 1800 331,359,351,368

Mason and Slidell, capture and surrender of 315, 325, 338, 374

Matriculation, meaning and effect of 172*

Maximilian, French establishment of, in Mexico 58,316

not recognized as sovereign 58,70,79

intercession for release of 52

McKean, Chief- Justice, charge on libels on foreign powers ^

McLanb, Secretary, January 6, 1834 IW

February 28, 1834 115

May 24, 1834 327

May 28, 1834 9*1

June30,1834 23

June26, 1834 ^

McLeod's case, conflicting views as to 21,350

Mbadb'scase ^

Mbdiation, between foreign belligerents ^

British, between United States and France in 1835, cironm-

stances of 518

between Spain and Cuba ^

in the civil war of 1863 ^

tendered to Mexico and Guatemala 58

"Mediterranean letters" ^^

Mbn-of- WAR not subject to port law ^

belligerent, not to be fitted out In neutral ports ^

790 .

INDEX.

sscnoN.

3HAKDISE, how far contraband ^ 373

jHAirr SHIP takes nationality fromflag 33

sabject in port to port law « 35, 35a

arming of 39

CHANTS, Chinese, position of ..v 67

BT, British minister, circumstances relative to 107, 107a

BOB, case of 396

[CO, relations of the United States to 58

treaty relations with 154

claims against, for discrimination against citizens 189,230

immediate effect of conquest of territories of, by the United titates . . 3

suspenRlon or termination of certain treaties with 137a

blockade of, in 1838-'39 364

1846 357

foreign intervention to compel payment of debt of i 318

protection of missionaries in 54

objectionable course of, as to passports 195

duty of, as to border raiders 18,19

maltreatment of prisoners by 348a

when marauders can be pursued into 50

distinctive rule of, as to naturalization 171,178a

policy of the United States to 58,72

gulf of, British claims of visitation and search as to 327

border of, may be crossed to punish marauders • 500

debt to European states, proceedings to enforce 58,318

Government, action of, as to matriculation 172a, 174

history, Mr. Buchanan's views of 58

independence, recognition of 70

changes of Government, recognition of 70

CAN COMMISSION, action of Government as to awards of 220

[CAN, Lake, freedom of 30

3NESIA, protection of missionaries in 54

ART ARRESTS OF ALIENS, liability for 189

CONTRIBUTIONS, imposition of, by belligerents 230

COURTS, power of 3

DUTY, liability of naturalized citizen to, when returning to his

native land j 180 J^

OCCUPATION, effect of 3

SERVICE, cannot be enforced on aliens 202

abroad, not necessarily abandouuig citizenship 176

TRIBUNALS, action of 354

J. S., on treaty obligations 137a

ITERS, FOREIGN. (See DIPLOMATIC AGENTS.)

acceptability of, and condit ions thereof 82 ff

when misconducting may be sent back 84

order of, in signing treaties 130

RiTY, relation of, to citizenship 183

MON, Government of, in Mexico, relations of United States to 58

^^)A, expedition of 395a, 404

ONARIES ABROAD, Intervention in behalf of 54

ONS, self-constituted, illegal 109

special, may be instituted by President 81

ssiPPi River, freedom of 30

791

INDEX.

fiECnOK.

Mississippi Hiver, control of, by a foreign power not to be. tolerated by the

United States 72

treaty of peace as to 908

Mob injuries, claims based on:

A GoYernment is liable internationally for such injuries when it could
have prevented tbem ; but when there is a remedy given in the Jadicial

tribunals, this must be pursued 296

Mobs, liability for injuries inflicted by, on Chinese 67,226

Monet, how far contraband 371

may be supplied to belligerent ^

Monroe doctrine:

History of 57

Special application of :

Mexico 58

Peru 59

Cuba 60

San Domingo and Hayti 61

Danish West Indies -, 6U

Hawaii (Sandwich Islands) 62

Samoa, Caroline, and other Pacific islands 63

Corea 64

Falkland Islands 65

Liberia 66

China 67

Japan 6B

Turkey, Tripoli, and Tunis 68«

How far applicable to Isthmus of Panama 287/

How affected by Clayton-Bulwer treaty i 15V

Monrob-Pinkney, draft of treaty 15ft«

Monroe, minister to Great Britain, June 3, 1804 131,15(*

January 8, 1807 15»

April22,1807 15»

April25, 1807 15»

Secretary, November 12, 1811 315>

May 30, 1812 171

March 9, 1813 107

May 1,1814 ^

May 5, 1814 86,107

SeptemberC, 1814 : ! 18

March 13, 1815 130

April 5, 1815 91

May 6, 1815 ®

Mayl5, 18ir> ®

July 17, 1815 «

November 16, 1815 2<1

December 10, 1815 ^

January 19, 1816 ^

March 20, 1816 361

Aprils, 1816 lO!"*

May 21, 1816 342

July 31, 1816 ^

September 10, 1816 93«.3»

November 2, 1816 389

January G, 1817 3»

792

INDEX.

SECnON

;0B, Secretary, January 10, 1817 402

President, annual message, 1817 50a, 402

1818 506^

1819 » 131,402

letter, May 26, 1820 131

Inaugural Address, 1821 402

annual message, 1^21 148&

1823 .• 57

letter, August 2 1824 70,159

annual message, 1824 45,402

special message, February 17, 1825 1485^

course as to negotiations with Spain in 1816-'20 161a

position of, in Louisiana negotiations 148&^

characteristics as a negotiator and statesman 107

AN, minister to Mexico, August 11, 1884 30

January 12, 1885 172a

[ON AGENTS, refusal of passports to 192

cc6, termination of treaty of 1787 with 1 137a

intercession v/ith, for Jews 55

IS, GouYERNEUR, position of, in France as minister 148a

letter of May 29, 1790 81

BRiTOS Island, title to 30

IT FAVORED NATION," meaning of term 134

[TITO Country, relations of, to Isthmus transit « 295

OTTO protectorate, how affected by Clayton-Bulwer treaty and sub-

lent negotiations 150/

CiPAL DEFINITIONS OF PIRACY, not extraterritorial 382

CIPAL LAW, relations of, to treaties 9,138

law of nations Qjf

ztpilL INSTITUTIONS uot ordinarily affected by conquest or annexation . 4

LEGISLATION as to treaties cannot i mpair treaty ri gh ts 307

NEUTRALITY STATUTES uot extraterritorial 403

noNSOF WAR, how far contraband 368

may be furnished to belligerent without breach of neu-

traUty 391

T, spoliations of, liability of Naples for 152

[7LMAN COUNTRIES:

onsular Jurisdiction in ^ 12&

sylum in 1 104

(See Turkey, Ottoman Porte.)

ES, liability of, for Murat's spoliations 152

LEON I, spoliations of, liability of France for 22B

LEON III, protest against his interference in Mexico in 1861 57, 70

decision of, in case of brig General Armstrong 227

)NAL LAWS not extraterritorial ^

)Nality, acquisition of. (See Naturalization.)

abandonment of 176

mode of changing 171

of flag imparted to ship 33

of the llnited States a unit as to ftireign powers 11, 7^

)NS, law of, part of law of land &

793

INDEX.

Naturalization: acim.

Principle of ezpatriatisn generally accepted 171

Conditions imposed by Qovemment of origin have no extrateiritorisl

force 172

Nor can the rights of foreigners be limited by country of temporary

residence requiring matriculation or registry 172a

Principles and limits of naturalization 173

Process and proof 174

Judgment of, cannot be impeached collat<erally, but if fraudulent may

be repudiated by Ooyemment 174i

Mere declaration of intention insufficient *. 175

Citizenship may be forfeited by abandonment 176

Or by naturalization in another country 177

Effect of treaty limitations 178

Under treaty with Germany, two years' residence in (Germany prima

fade 'proof oi abandonment 179

While Yolunt-ary expatriation is no ground for adverse proceedings, it
is otherwise as to acts done by naturalized citizen before expatria-
tion ....: 180

If he left military duty due and unperformed, he may be held to it if

he return after naturalization 161

But no liability for subsequent duty 162

Children born in the United States, generally citizens 163

So of children of naturalized citizens 184

children bom abroad to citizens of the United States 16S

A married woman partakes of her husband's nationality 166

Allegiance follows territorial change 167

Naturalization by revolution or treaty 188

Protection of Government granted to citizens abroad 169

Right may be forfeited by abandonment of citizenship 190

Care of destitute citizens abroad not assumed 190t

Passports can only be issued by Secretary of State or head of legation. 191

Only to citizens 192

Qualified passports and protection papers 193

Visas, and limitations as to time 194

How to be supported 195

(As to sea letters, see 408^.)

Indians, nationality of 196

Chinese 19^

Domicil may give rights and impose duties 196

Obtaining, and proof of 199

Effect of a»

Aliens, rights of »1

Not compellable to military service ^

Subject to local allegiance j ^

And so to taxation ^

When local or personal sovereign liable for ^

May be expelled or rejected by local sovereign ^

Foreign corporations presumed to be aliens ^

Navigable rivebs, freedom of ^

Navigation laws, effect of, in excluding foreign -built ships ^^

Navigator Islands, relation of United States to ^

Navy, display of force by ^

of the United States, service in, as entitling to naturalization ^'^

794

INDEX.

SECTION.

!£SSITV an excuse for invocllDg sovereignty 17,38,50

Tvhen a defense for breach of port law 38

how far j ustify Ing anticipation of an expected attack 50

LiGENCE, claims against foreign states based on 227, 235a, 395 Jf

OTIATION OF TREATIES, practice as to 89jf, 107,130

HEfiLANDS, King of, award as to northeast boundary 316

treaty relations with 155

treaty with, not affected by subsequent revolutions 137

TRAL, duty of, in respect to acknowledgment of belligerency 69

duty of, as to blockade-running 365

flag, how far protecting enemy's goods 342

liability of, for failure to perform neutral duties 227, 399

property, seizure of, under enemy's flag 344

when subject to enemy's risks 353

spoliation of, in war, claims for 223^,228

when to be treated as belligerents 352

waters, privileges of 27

TRALIZATION of waters 40

interoceanic canal 40,150/

TRAUTT:

Bights of neutral :

May trade with either belligerent, and herein as to trade with colo*

niesnot open in peace 388

May permit free discussion as to foreign sovereigns 389

May permit subjects to furnish funds or supplies to belligerents 390

Or munitions of war 391

To enlist in service of belligerent 392

sell or purchase ships 393

May give asylum to belligerent ships or troops 394

Bestrictions of neutral :

Bound to restrain enlistments by belligerents 395

. Or issuing of armed expeditions 395a

Bound to restrain fitting out of and sailing of armed cruisers of bellig-
erent 396

Or passage of belligerent's troops over soil ^ 397

Bound not to permit territory to be made the base of belligerent op-
erations 398

Nor to permit belligerent naval operations in territorial waters 399

sale of prize in ports 400

Bound to redress damages done to belligerent by its connivance or

negligence 401

>egree of vigilance to be exercised : ,

Not perfect vigilance, but such as is reasonable under the circum-
stances 402

Rulesof 1871, and Geneva tribunal 402a

dunicipal statutes not extraterritorial 1 403

Persons violating municipal statute may be proceeded against munici-
pally '. 404

i^olicy of the Uhited States is maintenance of neutral rights 405

President Washington's attitude as to neutrality 148, 248, 401^

Effect of proclamation of, on belligerency 69

jruarantee of, in respect to isthmus 145, 150/, 291

Is to foreign wars, the policy of the United States 45

England, part taken in conquest of fisheries from France 301 ff

795

INDEX.

fiBcnosr.

Kew Granada, treaty of, as to Isthmas transit ^

treaty relations with 145

guarantee with, of Isthmns nentrality 145

guarantee by, of safe transit 145

New Mexico, cession of 155

effect of conquest of, by the United States 3

New Orleans, possession of, by France incompatible witli the interests of

the United States ?2

riot in, 1857 ; liability for injury to Spaniards 226

Nicaragua, coutroversy of, with Great Britain as to Mosquito territory 296

liability of for injuries to citizens 19

relations of, as to Isthmus transit 293

projected canal through 150/

recognition of revolutionary government of 70

NiCHOLL, Sir J., opinion given to Mr. Jay on prize law 330

Non-intercourse, rules relating to 319

Non-intervention abroad the policy of the United States 4S

North American Indians;
Jurisdiction and title ;

Are domestic dependent nations « S08

Cannot transmit title 209

Treaties with ;

Must bo duly solemnized 210

Liberally coustrued 211

Citizenship of 19^

North American Lakes, Jurisdiction over 31

Northeast boundary, controversy as to 150c, 15iM, 15(V, 316

North Eastern Fisheries. (See Fisheries.)

North Paciwc fisheries, rights of the United States to 309

Norway, treaty relations with 163

Notification oy Blockade 3fi0

Nova Scotia, fisheries of 301/

laws of, as tc* bays 306i

Nuisances affecting other countries should be restrained by sorereign 20

Oakley, British secretary of legation, November 11, 1 609 • ^^

Oaths cannot be administered by Department of State ^^

Ocean, jurisdiction over ^'

(See Sovereignty over water.) ^

territorial authority over ^

Occupation as basis of title ^

military character of 'j*^

Offenses on land territorially cognizable ^

shipboard cognizable by country of flag ^

Officer, when not personally responsible for aots done by sovereign's order. 21

Official intercourse should be marked by courtesy and fairness ^^

Omoa, bombardment of port of, by British, 1873 ^

Opium TRADE, duty of United States to ^

restrictions on trade of *|J\

Oregon, provisions as to, in conventions of 1815, 1816 \:

Oswald's map, controversy as to

796

INDEX.

SECTION.

Ottomak Porte, treaty relations with 165

(See Turkey.)

practice of, as to nataralization 171,173

qaestion of recognition of power of, over Tripoli 70

admits foreign consular Jurisdiction 125

admits right of asylum 104

Ouseley's (Sir William) mission in Central America 160/

Pacific BLOCKADES, rules as to 364

COAST, policy of the United States as to annexation of 72

FISHERIES, rights of United states to 309

ISLANDS, relations of United States to ^. 62

Ocean, on northwest coast, territorial limitsof 132

importance of Sandwich Islands to transit of 62

canal to, negotiation as to ^^ jf

Pacific methods of redress :

Apology, reparation, satisfaction, and indemnity :

Apology and saluting flag ^.. 315

Cession of territory 315a

Case of Chesapeake and Leopard » 3155

Case of Dartmoor prisoners 315o

Case of Prometheus 315d

Arbitration 316

Withdrawal of diplomatic relations 317

Betorsion and reprisal 318

Non-intercourse 319

Embargo 320

Display of force 321

Pacifico, case of 318

Pacificus, essays of 148,318,402

Palbtebston, Lord, as to bombardment of Oreytown 224a

instructions as to northeast boundary question 316

diplomatic agency as to 107o

reprobation of A^burton treaty 1500

as to Clayton-Bulwer treaty 150/

as to contraband soldiers 373a

Panama, congress of, notices of 67

Panama, Isthmus of :

Transit over by international law :

Such transit cannot rightfully be closed 287

Guarantee of neutrality of 148

Guarantee of railroad over 150/

Transit over by treaty with New Granada:

Limitations of treaty 288

Continuance of 289

Effect of guarantee of, under treaty :

Such guarantee binds Colombia 290

Does not guarantee against changes of Goyemment 291

Relations to particular countries :

Colombia 292

Nicaragua 293

Costarica 294

797

INDEX.

escnox.
Panama, Isthitctb of— Continned.

Belations to particalar countries — Contmned.

The Mosqaito Coantry and Belize >...^..^. ...«••« 296

Honduras 296

Venezaela 297

Panoo-Pakoo, port of, use of, by United States 63

Papal NUNCIO, rank to be assigned to, in 1875 70

Paraguay, treaty relations with 155

action taken in 1859, to obtain justice from 38,57,321

Pabana Riveb, freedom of 30

Paris, declaration of, as to seizure of goods at sea 342

(As to privateers, see Privateers.)

Part payment of a claim, a defense |>ro tonto 237

Party changes not recognized in Department of State 78

Passports :

Can only be issued by Secretary of State or head of legation 191

Only to citizens 192

Qualified passports and protection papers 193

Visas, and limitations as to time 194

How to be supported 195

(As to sea-letters see 408/*.)

"Passports" for ships 409/

Paupers, foreign, non-reception of 16,206

Payment OF claims, practice as to 245

Payment of foreign debts, enforcement of 2S2

Peace, treaties of 130/, K7

TREATY OF, with Great Britain, 1783 150

is a treaty of partition 302

PEEL, Sir R., approval of Ashburton treaty 150e

letter, February 23, 1843 15P<

Pembroke, ship, attack on, in Japan 68

Penal LAWS, not extraterritorial 9

Pensacola, attack on, in 1815, when under Spanish flag S^

Perpetual allegiance, held by English common law 171

how far held in the United States 1^

Persecuted Jews, intercession for 55

Persona grata, meaning of term 81

''Personal LAWS,"' characteristics of 1

Peru, action of, as to Amazon Biver 1^

relations of United States with 59

relations of, to Chili 59

■ recognition of revolutions in '^

treaty relations with l^'^

modification and termination of certain treaties with ^^'

AND Chili, mediation between, in 1879 ^

Peterhoff case, discussion of 3®

Pickering, Secretary, June 1, 1795 ^

January 12, 1796 375

May 15, 1796 ^'^

May 24, 1796 ^

May25, 1796 ^

July 21, 1796 *

September2, 1796 ^

October 86, 1796 ^

798

INDEX.

SECTION.

RING, Secretary, Novembers, 1796 89

Jannary^e, 1797 342,368,370,385

May 9, 1797 346

Jane 16, 1797 400

July 17, 1797 342

March 2, 1796 390

January 8, 1799 331

May 15, 1799 271a

May 3, 1800 375

R, President, annnal message, 1853 157,175

1854 29,98,224a. 342,385,391

1855 12,29.295,395

1856 '. 291,342,396

minister at The Hague, October 9, 1861 394

October 12, 1861 394

October 23, 1861 394

November6, 1861 394

NET, C. C, i>08ition of, in French negotiations of 1797-'96 148a

letterof, January 17, 1798 342

EY, WiLUAM, his character as diplomatist 107

n^otiations in England 1506

papers as to non-intercourse 319

embargo 330

opinion of, as to conclusiveneas of prize-court adjudica-
tion _- 329a

letters as minister to Great Britain, January 8, 1807, April 22, 1807,

April 25, 1807 1506,331

Qst be robbery on the high seas 380

arllke attacks of insurgents not piracy 381

1 exception to rule of inviolability of flag 33,33a

1 probable cause shown vessel may be searched 326

ES, when occupying territory of foreign state may be there attacked. . . 50a

POTENTiARiES, powcrs of, as to treaties : 131

(See Diplomatic agents.)

order of signing treaties by 130

ETT, minister to Mexico 154

B JURISDICTION over high seas 32

[CAL ALLIANCES ABROAD, not consistent with the policy of the United

States 45/, 72

CHANGES, not recognized in Department of State 78

EXILES, hospitality to 48

cannot be officially received by President 91

local allegiance of 203

OFFENDERS, intercession for 52

OFFENSES, no extradition for 272

Y, DISTINCTiyE, OF UNITED STATES:

I to intervention in foreign affairs 45 J^

interference of European states in America 57

recognition of foreign belligerents 69

revolutions and changes of sovereigns 70

acquisition of territory 170

foreign diplomatic agencies 78#

(See DiFLOMAiic agents.)

789

INDEX.

6£cnox.
Policy, distinctive, of United States— Continued.

As to effect of time nnd other conditions on treaiies 1^/

(See Treaties.)

expatriation and privileges of adopted citizenship 171/

North American Indians 208

Isthmus of Panama 287/

(See Isthmus of Panama.)

fisheries 302/

(See Fisheries.)

arbitration 316

fireedom of flag at sea 307,408/

blockade 361

privateering 385

neutrality 406

Indiau titles 2,209

Jurisdiction of crime 15

inviolability of territory 11|

territorial waters - 27

marginal belt of sea 32

territorial rights of ships 33,226,408/

Politics, diplomatic agents not to interfere in 106

Polk, President, annual message, 1845 57,73

special message April 10, 1846 108

annual message, 184G 3

1847 '135

special message, February 10, 1648 339

February 22,1848 130

Aprils. 1848 70

April 28, 1848 72

April 29,1848 57

July 24, 1848 3

Polynesia Islands, question as to annexation of ^

Pope, continued recognition of 7^^

^'Pope's Folly," jurisdiction of island of I50e

Porcupine River, freedom of 30

Port exactions, when open to objection 37

by Colombia ^^

Port jurisdiction of consuls ^

Ports, blockade and closure of 357,361

obstructions of 34,361*

open to all nations ^

Port law, operation of - 34,35

exemptions from ^

does not control ships of war ^

Porter, Acting Secretary, June 8, 1885 ^

June9,1885 ^

Jnlyll, 1885 ^

September 11, 18tf5 ^^

September 14, 1885 38,1«

September 16, 1885 ^

January 2, 1886 f

January 4, 1886 jj;

January 19, 1886 ^

February 27, 1886 ^

800

INDEX.

Bscnon

R, Acting Secretary, Jane 16,1886 185

Jane28, 1886 1 125

» Rico, poeition of the United States as to 60

•OAL, treaty relations with 158

resistance of, to Sonth American independence 57

bSiON, national, when giving national title 2

1. CONVENTION OF PAIUS,effec1^f 150^

IN Florida, attack on, in 1(^15, when under Spanish flag 50ft

STATION OF MiNiSTSRS, mode of 85

SiTB not permitted to be receiy ed by diplomatic agents 110

DSNT, cannot be controlled by courts as to treaties 139

nor as to matters of international law 71, 78, 122, 139, 238, 329a, 302

cannot interfere with freedom of speech 56

determines question of recognition of foreign powers 71

how far bound to ratify treaty 131

power of, on military occupation 355

source of diplomatic authority. 78

(See Diplomatic agents.)

DENT, F bio ATE, colllsiou of, With schooufer Little Belt 327

\, liberty of, not the subject of Executive interference 56

as to forsign Qovemments ....« ^ 389

X>N, Haytian minister, September 27, 1875 104

jxpnoN OF ABANDONMENT of citizenship under G^man treaty, effect of. 179

06T, General, reprisals of, in war of 1812 3486

NERS, TREATMENT OF :

eneral rules - 348

rbuthnot and Ambrister 348a

eprisals in war of 1812 ....^ 3486

artmoor prisoners 34do

asesin Mexican war 348d

NERS OF WAR, Cruelty to, by Spanish authorities, protested against 60

LTE INTERNATIONAL LAW, SCOpC of 9

LTEER8 :

rhoare 38:*

ot pirates by law of nations 384

astained by policy of the United States 385

i COURT, when action of, is essential to condemnation 328

to determine as to question of blockade-running 363

when Judgments of, are conclusive 329,329a

proceedings of 330

influences acting on judges of 329a

18, BELLIGERENT, cannot be sold iu neutral ports 400

BTHEUS, steamer, attack on 224a,315<2

p. (See Evidence.)

on claims, rules as to 213 Jf

on extradition. (See Extradition.)

BRTT, private, seizure in war 338

public, seizure of, in war 340

when viewed as belligerent : 352

wanton destruction in war 349

ECTioN OF Government :

ranted to citizens abroad 189, 213 ^T

ight may be forfeited by abandonment of citizenship 190

are of destitute citizens abroad not assumed 190a

8. Mis. 162— VOL. Ill 61 801

INDEX.

8SCTI05.

Protection by diplomatic agencies 104

papers, practice as to 193

Protocols 145

constitutional effect of 131

Provisions, how far contraband 370

Prussia, termination of treaties of 1785, 1799, with 137i

treaties of the United States with .f 149

Public buildings, to be spared by laws of war 349

SHIPS not subject to port law 35,36

liability of for torts 229

Publications, offensiye to foreign conn tries, Exec ative cannot interfere with . 56

•

''Qualified passports," practice as to 198

QuiNCT, Josiah, attitude as to Administration in 1809 1506

Raiders, foreign, may be pursued across border 50,50a

Ralik Islands, foreign relations of 63

RAia>0LPH, E., Secretary, February 27, 1794 84

May 1,1794 370

.Tuly23,1794 36

August 11, 1794 402

September 17, 1794... M8

September 18, 1794 ..*. 56

October 22, 1794 402

October 23, 1794 3®

November 17, 1794. 36

December 23, 1794 91

April 13,1795 203,399,400

April 16,1795 399

April22,1795 '. 399

June 13,1795 36,79

Randolph, J., speech on uon-interconrse 319

Ratification of treaty, practice as to 131

Real estate, claims, for :

Title to be sued for at »itiw - 334

Otherwise as to trespasses and evictions 235

Rebel cruisers, not ordinarily pirates 381

Rebels, when entitled to acknowledgment of bel ligerency 69, 351

effect of such acknowledgment in relieving parent Government from

responsibility 69

in relieving such rebels from punishment, except under laws of

war 69,348, 3P0

liabilty of Government for spoliation by 223/

l?ECEPTiON OF ministers, mode of 15

Reciprocity, treaty relations* of, between Great Britain and the United

States S02

with Sandwich Islands ^ 62

Recognition of belugerexcy 1 69

60>t:reignty 70

foreign powers, determinable by Executire «l

802

INDEX.

BECnON.

:iGN STATE, an invaBion of its sovereignty 12, 395

permission of, a breach of neatrality 395

[ODES OF :

iting flag 315

)ry 315a

ike and Leopard « 315&

T prisoners 315o

eus 315d

816

iplomatic relations 317

prisal 318

319

320

....: 321

, sympathy "with 48

not surrendered on extradition ! 272

lL, not to be extradited 272

local allegiance of 203

intial to carry flag 410

»f,in foreign countries of aliens 172a

I of naturalization by 172a

rhen allowable as international claims 247

effect of 177

ing of, in treaty of 1818 304

LLEGIANCE, effect of 176/

rule as to 206

?E, recognition of, when de facto Governments 70

iting to 318

:aty, when effective 137a

len a defense to a claim 238,329a

8 of, to naturalization 173a

when forfeiting citizenship 176

snt, when importing belligerency 352

RIOR," rule applied to foreign sovereign 21

ating to ^. 318

not to be extraterritorial 27,32

ot divest titles 4

ot vacate treaties 137

on allegiance 187,188

ense to claim against foreign Government 236

s of, recognition of 70,77

rn, attitude of United States to 47a, 69, 70

* Government for injuries inflicted on aliens dnring 223 ff

itutlng a (f0 /aoto Government 7

mof 40

ckade of, in 1862 364

in diversion of 20

> islands in - — "^ ^

3 crossed to pursue marauders 500

amage iuflioted by 226

il rule in reference to 30

on of 40

rial diversion of 20

803

INDEX.

aicno!!^

ROBBBRT ON HIGH BEAS constitutes piracy 380

Bobbins, extradition of l 271*

RODNET, C^SAR A., agent to South America ^ 47

opinion on fishery question 302

Rogatory LETTERS^ practice as to 413

Romero, Mexican minister, May 24, 1884 30

Jnne2, 1884 30

Jane 12, 1884 30

October9, 1884 30

Rose, British minister, circomstances relating to 107,115^^

Roumanla, intercession with, for Jews 56

Rush, conference with Canning as to South American independence 57

Secretary, April 9, 1817 S68

May28, 1817 360

minister to Great Britain, March 2, 1818 50r

• April 15, 1818 • »

April22,1818 10?<^

January 25, 1819 ^ 216

February 6, 1820 107

August 9, 1824 »

Russell^ Lord John, objections to Ashburton treaty 150f

paper o£^ as to declaration of Paris 34S

Earl, position of, as to contraband character of diplomatic agents. 373

letter, August 28, 1861 M2

January 23, 1862 874

Russia, treaty relations with 158

treaty with, for purchase of Alaska, duty of House of Bepresents-

tiyes to approye 13U'

expulsion of aliens by S06

denial of expatriation by 171, 178

claims against for discrimination against citizens of the United

States 1»

resistance to aggressions of, in 1821, on northwest coast ^

intercession with, for Jews ^

Russian seas on the northwest, limits of. 33

Sabinos Island, title to 30

SALiniNG FLAG, as a national apology 315

Salvador, abrogation of treaty of 1850 with 137'

Samana, policy of annexing ^i^*

Samoa, relations of United States to ^

San Domingo, relations of United States to ^^

proposed annexation of ^'^

Sandwich Islands, relation of the United States to ^

treaty with 1^^

San Francisco, original military occupation of by the United States '

San Juan del Norte, bombardment of, claims arising from ^

(See Greytown.)

San Juan Island, Puget Sound, title to

Sardinia, treaty relations with ^^

Savage warfare, responsibility of instigators of ••• ^^

804

INDEX.

SECTION.

FIL086KR, N. Y.y destmction of steamer Caroline at, in 1838, by British aa-

thority 50o

LOPis, Coiint, views of, iaOeneva tribanal| 329a, 402a

>Tr, Sir W., errors in prize decisions of 238, 329a, 330, 362

opinion given to Bir. Jay on prize law 330

(k, Jarisdiction over 26jr

(See Sovereignty over water.)

crimes on, ordinarily subject to conntry of ship 33a

inland, freedom of 31

iL, seizure of enemy's property on 341j^

L letters:
Vessels carrying the flag of the United States cannot, in time of peace, be
arrested on the high seas, except at the risk of the party making the

arrest 408

Ships' papers certifying, under the authority of the United States, that
the vessel holding them is a vessel of the United States, cannot be
tested as to alleged frandulency by foreign powers. The question of

their validity is exclusively for the United States 409

Vessels owned by citizens of the United States may carry the flag of the
United States on the high seas, and are entitled to the protection of the
United States Government, though from being foreign built, or from
other causes, they are not and cannot be registered as vessels of the

United States 410

AL FISHERIES, rights of the United States to 309

Aif EN, Jurisdiction of consuls over 124

(See Consuls.)

ABCH OF SHIPS AT SEA:

As a belligerent right :

Visit in such cases permitted 325

Ko longer permitted in peace 327

Action of prize court may be essential to condemnation 328

When hav ing Jurisdiction such court may conclude 329

But not when not in conformity with International law 329a

Proceedings of such court 330

In cases of piracy :

On probable cause^apers may be demanded 826

Impressment : *

Its history and abandonment 331

CEDED States, had a de/acto (Government 7

CRET-SsRViCB MONET, rules as to 109

CBETART OF STATE, sole OTgau for foreign affairs 78

(See Diplomatic Agents.)

authority of, as to passports 191

decision of, constitutes ret a4fiM{ioa/a 238

IZURB of person or things, by order of foreign (}ovemment| an invasion of

M>vereignty • * 14

tjr-DEFBNSB, an ezonae for invading sovereignty 38,60

ici-civiLizsD LANDS, explorations in 61

international courts in 53,126

^ciNOLB WAR, responsibility of instigators of 348a

GteneralJackson's course in 50b

Hate of the United States, functions of, as to treaties.. •.... 131

(As to diplomatic nominations, see Diplomatic aobnts.)

<%T7E8TRAtion of DEBTS, iu war 1 338

805

INDEX.

SECTION.

6B1TLBMBKT, nnvRMBDlATB, defense to claim 240

Seward, F. W., Acting Secretary, February 6, 1862 97

May 16, 1877 70

June 29, 1877 55^

October 30, 1877 2rr

August 20, 1877 18$

Decembers, 1878 12J

January 15, 1879 19,23D

April 15,1879 m

June 28, 1879 138

July2, 1879 184

Augast 13,1879 184

Aogust 20, 1879 216

AngUBt 21, 1879 96

8BWARD, W. H., Secretary, March 9, 1861 70

March23, 1861 '. 120

March 30, 1861 223,318

April 2, 1861 57

April 6, 1861 58,402

April 10,1861 70

Apra24,1861 342

May 27, 1861 361

June5. 1861 293

June6, 1861 342^

June21, 1861 342

July 6, 1861 342

July 16, 1861 91

July 18, 1861 45

July20, 1861 361

July2l, 1861.. ^

July23, 1861 68

August 1, 1861 68

August 12, 1861 342

August 17, 1861 342

September7, 1861 342

September 10, 1861 ! 34'

September 28,' 1861 394

October4, 1861 382

October 7, 1861 ^

October 10, 1861 394

October 17, 1861 394

October 21, 1861 68

October 22, 1861 119, Wl

October 23, 1861 11^

October24, 1861 ^

October 30, 1861 394

November 2, 1861 391

November 11, 1861 394

November 15, 1861 ®

November 23, 1861 394

November 29, 1861 1*^

December4, 1861 ^

December 16, 1861 374

December 25, 1861 374

806

INDEX.

SECTION.

H., Secretary, December 26, 1861 325,328

January 16, 1862 190,244

January 30, 1862 190

January 31, 1862 328

February 3, 1862 107

February 19, 1862.- 328,359,374

February 27, 1862 145

March3, 1862 58

March 6, 1862 67

March24, 1862 360

April 5, 1862 97

April 14, 1862 58

AprU28, 1862 ...176, 104, 268, 271a, 331

May 21, 1862 399

May30, 1862 220

June3, 1862 121

June 21, 1862 97

June27,18e2 79

July7, 1862 45

July 8, 1862 240

July22, 1862 120

Auguftt4, 1862 32

Augnst 8,1862 399

September 5, 1862 202,203

September 24, 1862 11a, 16

September 27, 18S2 46

September 30, 1862 11

October 3, 1862 369,408

October 10, 1862 32

October 11, 1862 223

October25, 1862 45

November 3, 1862 223

Novembers, 1862 223

November 19, 18^2 70

December 9, 1862 .■ 374

December 15, 1862 157,373,391

December 16, 1862 32

December29, 1862 49

January7, 1863 58

January 9, 1863 223,402

January 12, 1863 241

January 26, 1863... '. 368

February 4, 1863 123

February 6, 1863 107a

March 9, 1863 70

March 13, 1863 228

April 10, 1863 361

April 18, 1863 232

April 20, 1863 314

April 21, 1863 182

April 24, 1863 69,3a5

May8, 1863 58

May 11, 1863 45

Juue20, 18<j3 45,89a

807

INDEX.

Bcnov.

8BWABD, W. H., Secretary, Jane 29, 1863 Qg

July2, 1863 36

July?, 1863 68

July 10, 1863 ! 66,222

July 14, 1863 45

July 20, 1863 209,203,206

August 10, 1863 32

September 1, 1863 69

September 9, 1863 68

September 11,1863 f.... 58

September 21, 1863.: 68

September 26, 1663 (two instructions) 58

September 28, 1863 293

October 3, 1863 68,231

October9, 1863 58

October 23, 1863 58

October24, 1863 402

November 30, 1863 45

December 17, 1863 227

January 12, 1864 223

January 29, 1864 18

February 3, 1864 46

February 24, 1864. 400

M^Tch 18,1864 402

March21.1864 00

AprU6, 1864 W

April 7, 1864 71

April20, 1864 fiW

June 24.1864 «8

July 15,1864 »*

July 28, 1864 iWi

August 18, 1864 5

September 16, 1864 S

September 19, 1864 IM

October 24, 1864 WS

December2, 1864 •. W

December26, 1864 *•

March 13, 1865 •

Maroh20, 1865 3*

MarohSO, IS65 «*

May25, 1866 ^^

June 19, 1865 ^

July 24, 1865 *•

August 7, 1865 3W

Augusts, 1865 '^

August 15, 1865 ^

September 1, 1865 *•

November 9, 1865 ^^

November 16, 1865 *

November 21, 1865 ^'^

December 6, 1865 *

December 16, 1865 ^

February 12, 1866 W^

March 10, 1866 ^

808

INDEX.

H., Secretary, March 16, 1866 35

. March 19, 1866 * 58

March22, 1866 182

Aprill6, 1866 58

AprU25, 1866 150/

Aprils?, 1866 217,231

April 30, 1866 395a

May 7, 1866 182

Jii]ie2, 1866 57

Angust 15, 1866 67

AugTi«t22, 1866 206

Anguat24, 1866 225

September 19, 1866 231

September 23, 1866 97.

September 27, 1866 203

October 20, 1866 58

October27, 1866 49

November 20, 1866 67

February 25, 1867 49, 102

March 27, 1867 193,204

March28, 1867 120

April 1, 1867 49

April 6, 1867 52

May 18, 1867 : 90

May 20, 1867 245

June 13. 1867 361

September4, 1867 311

October 7, 1867 68

October 25, l'"67 79

December 9, 1867 52

December 23, 1867 92

January 2,1868 79

January 13,1868 189

February 8, 1868 271

February 19, 1868 385

March21, 1868 261

April7, 1868 184

April 30, 1868 - 410

May 6, 1868 231

May28, 1868 104

July5, 1868 62

July 7, 1868 241

July 16, 1868 171

July 17, 1868 221

July 20, 1868 189

July22. 1868 335

July 24, 1868 243

August 17, 1868 97,361

August 22,1868 90

August 27, 1868 .' 49.70

September 15,1868 ! 152

September 17, 1868 145

September 23. 1868 171

^ Octobers, 1808 * 68

809

nCDEX.

•

flicnos.

Seward, W. H., Secretary, December 1, 1868 70

December 30, 1868 88,117

January 7, 1869 90S

January 20,1869 56

January 30, 1869 4

February 18, 1869 67

February 19, 1869 380

February 27, 1869 B5

Shelburxe, Lord, position as to American independence 3(B

Shelter, rights of fishermen, under treaty 3(6a

international law 38

Ship, belligerent, asylum iu neutral port 394

crimes on, ordinarily subject to country of flag 33a

enemy's, capture of 345

Ship, uxregistkred, right to carry flag 409

Suip-CANAL on Isthmus, proposed neutralization of. 40

negotiations as to ^f

Ships OF war, not subject to port Jurisdiction 36

liability of, fortorts - ^

Ships* papers :

Vessels carrying the flag of the United States cannot, in time of peace,
be arrested on the high seas, except at the risk of the party making

the arrest 408

Ships' papers certifying, under the authority of the United States, that
the vessel holding them is a vessel of the United States, cannot be
tested as to alleged fraudulency by foreign powers. The qnestion of

their validity is exclusively for the United States ^

Vessels owned by citizens of the United States may cany the flag of the
United States on the high seas, and are entitled to the protectioa of
the United States Government, though from being foreign built or
from other causes, they are not and cannot be registered as veaeli

of the United SUtes 410

Ships, visitation and search of 36/

(See Visit.)

(merchant) in port, subject to port law & 35,35i

arming of 39

nationalized by flag 33

Neutral may buy of or sell to belligerent 393

Shore fisheries, limitations as to s 300/,3M

SiciLT, spoliations of, claims for ®

Sick citizexs abroad, care of, not aasamcd by GrOvemment..... ^*

Sickles, minister to Spain, November I'i, 1873 ^

November 13, 1873 388

Signature of treaties, practice as to ^

SixrosrriES of coast, adaptation of marine belt to 30,300,305

Skixner, postmaster, complaints of, for disrespect to France ^

Slavery, effect of continuance of, in Cuba ^

Slave traders, search of vessels claimingtobe ^'

Smith and Qpdek, trial of 3K«,*^

Smith, E. P., examiner of claims, Tvpors in Janssen's case ^

Smith, Gold wix, opinion on Trent case ^

Smith, J. S„ charsi^^ of United States to Great Britain, Jane 16, 1811 *^

Smiih, R,. S^or^tary, October 1?, iei'9 ^^

NoToml»er ?, 1?09

SIO

INDEX.

SECnOK^

TH, R.y Secretary, November 23, 1809 84

DISR8, belligerent, asylninto, byneatral 394

cannot be permitted to pass over nentral territory 13, 397

distinctive roles as to naturalization of 173

Geneva convention for amelioration of condition of 348

how far contraband 3730"

bow far entitled as such to naturalization 173

treatment of, as prisoners. (See Wars.)

JSMNIZATION OF BCABRIAGE, rulcS aS tO 261

fORA, marauders may be pursued into 50e

IKD, Baltic, Danish claim of Jurisdiction over 29

WD DUES, discussion as to 29

fTH America, agents to obtain information on, in 1816 47

foreign interference in, discountenanced (Monroe doctrine) . 57

policy of the United States as to * 45

fTH American independence, policy of the United States as to 402

INSURGENTS, recognition of belligerency of 70

States, mediation between 49

fTBERN PORTS, blockade of, in 1861 359.361

ICREIQN, di nesting of rights of by cession or conquest 5Jf

foreign, character of, may be discussed 389

extraterritoriality of 17a

liability of, for damages to aliens by acts of warfare 223&'

for failure to present international claim 248

of, for alien subjects 205

when responsible for subject's conduct 21

EREION or RIRTH :

Power of, over returned subjects :

While voluntary expatration is no ground for adverse proceedings, it is

otherwise as to acts done by emigrant before expatration 180

If emigrant left military duty due and unperformed, he may be held to

it if he return after naturalization 181

But no liability for subsequent duty 182

BRBiGNTT, recognition of 70

KREIGNTT OVER LAND :

rerritorial sovereign supreme 1

Discovery the basis of title 2

Conquered territory subject to temporary military control 3

Conquered, annexed, or divided territory retains its prior municipal in-
stitutions 4

Benefits and hardens pass to conquering or annexing sovereign ^ . . , 5

Sut such country not affected by acts of prior sovereign after cession 6a

IJolonies becoming independent retain their boundaries and other rights. 6

Title of de facto Government to obedience 7

baw of nations part of law of land 8

dnnicipal laws not extraterritorial 9

L)istinctive rule as to taxes 10

[Mstinctions as to Federal Constitution : 11

Territory as a rule inviolable :

General principles 11a

Recruiting in foreign state forbidden 12

Permission requisite for passage of foreign troops 13

And so of foreign seizure of persons or property 14

Jurisdiction of crime 15

811

INDEX.

ncno5.
SOTBRiOMTT OYER LAND— Oontinaed.

Territory as a rale inyiolable — Continned.

And so of foreign sending of paajMrs and criminals 16

Exoeption as to necessity 17

foreign soyereigns, foreign ministerB, and foreign troops. 17f

nncirilized lands 171

Duty of sovereign to restrain agencies likely to ipj ore another coontry :

Predatory Indians 18

Other marauders 19

Diversion or obstrnction of water SO

When harm is done by order of foreign sovereign such sovereign is the

accountable party SI

Territorial boundaries determined by political not Judicial action SS

SoTEREioimr OVER water:

High seas, sovereignty over S6

Territorial waters, privileges of • S7

Bays S8

Straits 39

Rivers 30

Lakes and inland seas • 31

Marginal belt of sea 38

Ship nationalized by flag 33

Crimes at sea subject to country of flag * 33«

Ports open to all nations 34

Merchant vessels subject to police law of port 3S

Crimes on such vessels, how far snbject to port law 35s

Not so as to public ships 36

Oppressive port exactions.., 37

Exempt ions from stress of weather, vis msjor, or Inadvertence 38

Arming merchant vessels 39

Neutralized waters ^

8PAIK, claim of, for damages to consul and subjects by riots in New Orleans

in 1851 8*

treaty relations with ^^

duty of, to ratify treaty of 1811 131

claims treaty of 1802 with, annulled by treaty of 1819 ^'

exactions of, as to passports ^^

limits of territorial waters of, as to Cuba 387

mediation between, and South American States ^

-original claim of, to America « '

proceedings against Cobbett for libel on '. ^

protocol as to modes of criminal trial ^

relations of, to Cuba ^

•cession of Louisiana by, to France '^

grantsof, in Louisiana »

resistance of^ to South American independence ^

changes of dynasty in, recognition of ^

colonies of, in South America, relation of the United States to ^^'^

relation of, to Confederate independence •— v^

port exactions of *^

military posts of, in Florida, attack on, in 1815 J*

South American Colonies of, recognition of independence of

«poliation by, claims for

waters of, territorial limits of

812

INDEX.

»ECTIOir,

imsof, on Mexico, in 1860 , 58,318

kRKD, discovery of map of northeast boandary 1509

VK CLAIMS, not ordinarily the subjects of diplomatic pressare.. .231,232

berty of, as to foreign Governments 38^

tmentof 347

SBf CLAIMS FOR :

reign is not ordinarily responsible to alien residents for iojnries
receive on his territory from belligerent action, or fit>m insurgents
m he could not control| or whom the claimant Qovemment had

enized as belligerent 223-

r injuries fh>m acts of legitimate warfSure waged by him on his

ly'ssoil 224

wn bombardment 224i»

lligerent is liable for iojnries inflicted in violationof rules of civil-
warfare 225

Q neutrals liable for breach of neutrality 227

belligerents liable for abuse of belligerency 228-

ir public ships are liable for torts 229'

ra, Alabama, Treaty of Washington relative thereto^ . ».^ ...... ». 1150^'

: CASK, discussion of *.. 362

Cakal, freedom of ...» 30

sland, annexation 6f 61a

:ncb, bay of, rights of fishermen to 305a

river,freedom of 30

>0B, proiKMition for annexation of 72

s, island, policy of annexing 6Ia,72

views of, in Geneva tribunal 402a

^BNMENTS cannot extradite 275

slationas to aliens' right to acquire land 201«

», imposition of on aliens 204

1 General Government, relations of to naturalization 173-

as to foreign affairs .. 11^

werof,as to naturalization 173-

(See CoNSTTTunoK, United Stazs.)

may municipally annul treaties 138

but have no extraterritorial force when conflicting with interna-
tional law 9

ER, A. B., relations of, to Samoan Islands 63

efense for breach of port law 38

[iord, errors in prize decisions of 23d,329a,362

» Scott, SirW.)

irritorial jurisdiction over 29

p WATER, extraterritorial diversion of 20

jurisdiction over 30

WEATHER, a defense for breach of port law 38

rhen not personally responsible for acts done by sovereign's order. 21

relation of, to naturalization.... 173

^AL COURT, when to precede diplomatic demand 241 ffi

enator, opiKisition to annexation of San Domingo 61

action as to Mr. K. P.Trist^s servioea 154

onfederate cruiser), asylum to,' by Netherlands ^ 394

roRCB, a defense for breach of port law 38

lay be furnished to belligerent » 390*

813

INDEX.

ncnox.
•tSupREME Court of the United States, power of re virion in interxiatioDal

cases 91

(See Courts, Executive.)

Surrender of fugitives, cannot ordinarily be wlthoat treaty 268

process under treaty - 280

** Suspects," claim for detention of, in Ireland 190

Suspension of intercourse, rnles relating to 319

Sweden', treaty with 162

AND Norway, treaty of 1816 with, terminated by limitation 137f

Switzerland, treaty relations with 163

limits imposed by, on natnralization 172

Sympathy with foreign conditions:

Relief and protection of citizens abroad 46

Agencies to obtain information as to pending insurrection 47,389

Sympathy with liberal political straggles 47«

hospitality to political refugees 48

Mediation 49

Intercession in extreme cases of pol itical offenders 92

International ooarts in semi-oivilized or barbarous lands 53

Good ofiQces for missionaries abroad 54

Oood offices for persecuted Jews 55

Non-prohibition of pnblications or subscriptions in aid of political action

abroad 56

Charitable contributions abroad 56c

Tahiti, French intervention in 62

Taking leave of ministers, mode of 85

Talleyrand, position of, in negotiations of 1797-'98 148«

letter, August 28, 1798 109

Tampico, effect of occupation of, during Mexican war..... 3

Taxation, law applicatory to 10

by what sovereign imposed 204

Taxes, distinctive rule as to 10

how far imposed on diplomatic agents 96

non-payment of, at home, presumption from as to abandonment of

home Government 176,190

payment, a test of retention of citizenship 17*

refusal to pay coupled with residence abroad, effect of l''^

PORT, when internationally exceptionable 37

Taylor, President, annual message, 1849 47,49,396

special message, March 2H, 1850 '^

Tehuantepec route over Isthmus of Panama, considerations relation

thereto 150/

Termination of war 356

Territorial expansion, policy of the United States as to ^

COURTS, to be appealed to in case of claims arising in Territories

(Tunstairs case) 241

Territorial sovereignty. (See Sovereignty.)

Territoriality, rights, of granted by treaty of 1818 304

Territorial waters, conflicts of jurisdiction asto *

of neutral} not to be used for belligerent pnrposea.- ^

act of 1878 (British) ^

Territory, annexation of, policy of the United States as to ^

cesHioii of , «k» Te^ft«& • ^^

814

INDEX.

SECTION.

A.S, recognition of belligerency of 6C

independence of 70

policy of the United States in the annexation of 72

indei>endence of, did not divest Mexican titles 4, 72, 154

citizenship in, after annexation ^ 188

course of leading statesmen in 1816~'20, in respect to 161a

border of, when marauders can be pnrsned across 50

debt of, how far assumed by the United States 5

Jurisdiction over Rto Grande 30

ftreaties with, abrogated by annexation 137a

^RNTON, Sir £., conversation of, with Mr. Fish as to extradition 270

tASHER's CA8B, discussion of 190, 203, 229» 230, 357

(£E MILES ZONE, limits of, generally 27,32

limits of, as to fisheries 302/, 305

RE Island, seizure of, by Qreat Britain 63

[E, not barring foreign claims 239

LEBT CONQUEST, nature of 3/

DISCOVERT, nature of 2

LE8, to be held continuous through x>olitical changes 4, 6

LES TO LAND, not Ordinarily affected by conquest or annexation 4,5

determined by lex Htua 234

7NA0E TAX, of China 144

of Colombia 145

tPEDOES, obstructing channels by 361a

ITS ON HIGH SEAS, jurisdiction over 33a

iBE, right of neutral, with belligerent 388

L17SIT, of diplomatic agents privileged 97

extradited fugitive 276ft

over Isthmus of Panama 287 Jf

UNSiT PASSES,'' practices as to 193

JC8LATI0N OF TREATY, question as to accuracy of 165

^URY REGULATIONS as to shlps' papers 410

ATY OF PEACE with Great Britain a treaty of partition 3GIS

ATY OF Washington (1842), provisions of, as to slave trade 150c, 327

( 1871), rules of, as to neutral duties 402a

ATIES:

Negotiation 130

Ratification and approval :

As to treaty-making i>ower 131

legislation 131a

^ben treaty goes into effect 132

Construction and interpretation 133

* Favored nation'' 134

Subsequent war, effect of 135,336

annexation, effect of 136

revolution, effect of 137

Abrogation by consent, by repudiation, or by change of circumstances. .. 137a
^Hien constitutional are the supreme law of the land, but may be mu-
nicipally modified by subsequent legislation 138

f Qdiciary cannot control Executive in treaty making 139

^X^cial treaties:

Argentine Republic 140

Austria-Hungary 141

Barbary Powers .•... \^a

INDEX.

Treaties — CoDtiuaed. ncnox.

Special treaties — Contioued. *

Bayaria • ID

Biazil 143

China 144

Colombia and New Granada 145

Costa Rica and Honduras t.... 146

Denmark 147

France:

Treaty of 1778 148

Convention of 1800-'01 148t

Treaty of 1603 (cession of Louisiana) 146^

Subsequent treaties 148e

Qermany 149

Great Britain :

Treaty of 1783 (peace) 150

Jay's treaty (1794) m

Monroe-Pi nkney and cognate negotiations 150^

Treaty of Ghent (1814) 150e

Conyentlons of 1815, 1818 15M

Ashburton treaty (1842) 150i

Clayton-BdUer treaty (1850) 150/

Treaty of Washington (1871) and Geneva tribunal 150^

Hanseatio Bepnblio 151

Hawaii 151«

Italy 154

Japan 153

Mexico 15i

Netherlands 155

Paraguay « l^

Pern 157

Portugal.... 15^

Russia -. 1^

Sardinia 1»

Spain :

Treaty of 1795 1«

Florida negotiations and treaty of 1816-^ 1^^'

Sweden and Norway 1^

Switzerland 1®

Tripoli _ '. IM

Turkey 1®

Veneenela 1^

Wtlrtemberg 1*

TreatieSi effect of^ as modifying citizenship 1^

in transferring allegiance 1^

Trent, steam packet, seizure of., ^^

prize-court essential to condemnation of ^

general aspects of seizure of 325,3^i3^i^|

Trescot, Acting Secretary, June 29, 1860 ^

July31,ieG0 ^^

August 8,1860 ^J

August 18, l«60 •

Tripoli, relations to ^

treaty with - ^^

questions ot vuV^^cWcvil o^, 1q Ottoman Porte

816

INDEX.

sscnoK

r, his mode of negotiating treaty of Gaadalape-Hidalgo 130, 1!R

ipS| foreign, passage of, an invasion of sovereignty 13, 397

extraterritoriality of 17a

belligerent, asylum to, by nentral 384

may be sent across the border to pnrsne marauders 50s

xs, character and effect of. 337a

n.TB, liability for injuries occasioned by 326

tall'scabb 241

i, relations to 68

XT, alleged confiscation by, claims for 230

action of, as to Eoszta's case 175,198

blockade of, in 1887 364

claims against, for maltreatment of missionaries in 1886 230

claim of, to obstruct Dardanelles 29

claims against, for discrimination against United States citizens. .. 189

conduct in refusing to surrender Hungarian refugees 48

oonsular Jurisdiction in 68a, 125

dii&culties with, as to naturalization 171,173

Jews in, persecution of 55

passports to naturalized citizens of 193

protection of missionaries in 54

recognition of power over Tripoli 70

Sicilies, treaty with *. 152

RjPresident, special message, August 11, 1842 50e

August 11, 1842 .*. 327,331

December 30, 1842 62

January 9, 1843 45

February 27, 1843 ,. 327

X DISCRIMINATION, a basls of claim against foreign state 230

ED States took its boundaries and territorial rights by partition and

not by grant, under treaty of 1783 with Great Britain . ... 6

allegiance to, based on Revolution 187

CD States, constitutional distinctions of :

s to territorial occupation 4 jf

Jurisdiction of 11 j^

high seas 26 Jf

annexation -. 58,72,1486,161a

executive authority 71,78 Jf, 122, 139, 288, 329, 329a, 362

source of diplomatic action 78^

recognition of foreign states 70

negotiation of treaties 131

force of treaties 138,139

naturalization 173 if

North American Indians 196, 208/

Chinese 197

power of Congress over marriage 261

right of foreign sovereigns to sue in Federal courts 249

diplomatic and consular privileges 92, 95 Jf, 120

declaration of war 33:^

piracy 380/

ED States courts, power of revision in international cases 21

relations of, to executive in matters of international
law 71,78 f,V»A^.^fi».^S^«';^'^

a. Mis. 162— TOL. Ill 52 %Vl

INDEX.

acnox.
Uritsd Statbs, pouct of :

ABtoIndiaD titles 8,S(I9

Joriadiotion of erime « 15

InTiolability of territory 11/

territorial waters 27

marginal beltof sea 3S

territorial rights of ships 33,296,406/

intervention with foreign states 4S/

(See iNTBBYENnOK.)

I inter&renceof European States in America.... 57

recognition of foreign belligerents 69

roTolntions and changes of soyersigns 70

acquisition of territory 170

foreign diplomatic agencies 78/

(See DiPLOMATIO AOBlfTS.)

effect of time and other conditions on treaties 135/

(See Treatibs.)

expatriation and privileges of adopted citisenship 171/

Korth American Indians 208

Isthmna of Panama 867/

(See Isthmus of Panaica.)

fisheries 302/

(See FiSHSRiBS.)

arbitration 316

freedomof flagat sea 307,406/

blockade 361

privateering 363

neutrality 405

UfshxtBi Secretary, August 1,1843 121

Augusts, 1843 387

Octobers, 1843 2

October 20, 1843 7i

November 28, 1843 33

December 1, 1843 70

Uruguay River, freedom of 30

Tail, Acting Secretary, October 19, 1838 328

October23, 1838 363

Valparaiso, liabilities for bombardment of 224,225

Yak Bokkblen's cabb, claim against Hay ti for maltreatment ^

YahBubbv, Secretary, June 9, 1829 45,70

July 20, 1829... »

July 21, 1829 «g,

October 2, 1829 60,107*

October 16, 1829 45,84

October 17, 1829 »

May 5,1830 H^

June 18, 1830 3tt

October 13, 1830 ^

October 15, 1830 <•'»

October 20, 1830 *

October 23, 1830 98, Wl

January 27, 1831 35i

March 8, 1831 362

818

•

TSDEH.

SECTION*

President, annoal message, 1838 45,402

iir C. t discussion of northeast boundary question 316

, treaty relations with 165a

termination of certain treaties with 137a

isthmian relations of 165a, 887 J^

distinctive rule as to naturalization n... 171 Jf

claims, action of Gtovemment as to 220

IS nationality from flag 33

See Ships; Sovereignty over water; Visit.)

»RBI6N BUILT, PRIVILEGES 07 :

sarrying the flag of the United States cannot, in time of peace,
arrested on the high seas, except at the risk of the party making

arrest 406

apers certifying, under the authority of the United States, that
vessel holding them is a vessel of the United States, cannot
ested as to alleged fraudulency by foreign powers. The question

heir validity is exclusively for the United Statea 401)

owned by citizens of the United States may carry the flag of the
d States on the high seas, and are entitled to the protection of the
1 States Government, though from being foreign buUt, or from
causes, they are not and cannot be registered as vessels of the

i States 410

utrals may sell to or buy of belligerent 393

LS, rules as to 1 118

to BE EXERCISED BT NEUTRAL 402

;a8E, i nciden ts of 315, 337

tice as to 194

[IPS AT sea:
ligerent right :

t in such cases permitted 325

• longer permitted in peace 327

emnation, action of prize-court may be essential 328

aving Jurisdiction such court may conclude 329

when not in conformity with international law 329a

ings of such court 330

ment:

history and abandonment 331

I of piracy :

probable cause papers may be demanded 326

a defense for breach of port law 38

lOSSIONS TO FOREIGN SOVEREIGNS ILLEGAL 109

37, Baron, on neutral duties 394

lotion of, to naturalization 173

nission to San Domingo 61

SE (Irish arrest) 230

ons and declaration of:

^be limited and conditioned 333

ilaration may be formally necessary 334

i not practically essential 335

f, as to civil rights:

7 abrogate treaties *. 135,336

&1Q

INDEX.

WA^-Continned. . „P,^

'^ect of, M to civil rigbt« — Continued. •

Does not abrogate treaties which are essential to national exist-
ence, except such as were put in issae by the war 133

Breaks np business and suspends contracts 337

Bat not traces 337^

ipplication of, to enemy's property :

Private property on land not nsnally subject to enemy's seizure 338

Contributions may be imposed 339

State movable property may be seized 34O

So of property in enemy's territorial waters ...• 34I

Liability to seizure of enemy's private property on high seas under

neutral flag 342

of neutral property under enemy's flag 343

Exceptions as to rule of seizure of enemy 's property at sea 344

What is a lawful capture of an enemy's merchant diip 343

When convoys protect 340

Rules of civilized warfare to be observed :

Spies and their treatment...... 347

Prisoners and their treatment :

General rules '. 348

Arbuthnot and Ambrister 34{ji

Reprisals in war of 1812 3tt^

Dartmoor prisoners 348f

Cases in Mexican war 346^

Wanton destruction prohibited 3(9

Who are entitled to belligerent rights :

In foreign war authorization from sovereign generally necessary .... 350
Insurgents are belligerents when proceeded against by open war.... 351
When enemy's character is imputable to neutrals:

When residing in enemy's Jurisdiction 3S2

When leaving property at enemy's disposal 353

Administration by conqueror:

As to courts 351

Executive ^

Ending of war :

By cessation of hostilities 356

treaty of peace.... 357

War cruisers, not to be fitted out in neutral ports 3K

War, intermediate, may bar international claims ^

liability of Qoveinment for injuries inflicted on aliens during ^f

violation of rules of, liabiUty for 2»,317

War, claims based on:

A sovereign is not ordinarily responsible to alien residents for ii^ariM
they receive on his territory from belligerent action, or from insurgents
whom he could not control, or whom the claimant Qovemment had

recognized as belligerent ^

Nor for injuries from acts of legitimate warfare waged by him on hifl

enemy's soil ^^

Qrey town bombardment ^

But belligerent is liable for injuries inflicted in violation of rules of cir-

ilized warfare ^

Foreign neutrals liable for breach of neutrality ^

abuse of belligerency ^

How far public ships are liable for torts ^

820

INDEX.

sxcnojr.

1812, did Dot diveet the title of the United States to the fisheries . . 303

>8, liahility of, fortorte 229

r UNDER EXTBADmoN PROCESS, practice as to 276a

iNE, minister to France, Kovember 18, 1870 106

March 19, 1871 70

April 23, 1871 106

May 31, 1871 105

ION, bamiDgof,in 1814 349

roN, President, letter, May 25, 1789 107

July 26, 1789 107,107a

address, September 17, 1789 131

letter, Jane 15, 1790 107a

annual address, 1792 402

proclamation of December 3, 1792, as to neutrality. 402

conversation, Febrn ary 20, 1793 106

proclamation, April 22,1793 402

annual address, 1793 402

message, December 5, 1793 84

speech, January 1,1796 47

message, March 3, 1796 131a

decision of, as to fitting out of belligerent cruisers,

June 13, 1796 396

annual address, 1796 228

farewell address, 1797 45

on neutrality duties 148,428,201

"ON, TREATY OF 1842 150e

(See Treaties.)

1871, effect of 150^, 402a

URSES, extraterritorial diversion of 20

>YEREioirrT oyer:

eas 26

>rial waters, privileges of 27

and inland seas 31

lalbeltof sea 32

ationalized by flag 33

I at sea subject to country of flag 1 33a

»peQ toall nations 34

int vessels subject to police law of port 35

I on such vessels, how far subject to port laws 35a

as to public ships 36

isive port exactions 37

»tions from stress of weather, vis mijor, or inadvertence 38

I merchant vessels 39

lized waters 40

TCH, aggressions on, by Paraguay 321

stress of, a defense for breach of port law 38

Beeretary, March 15, 1841 21,360

April24, 1841 21

December 4, 1841 66

Deoember28, 1841 38

January 3, 1842 189

821

IKDEZ.

ncnoft

WSMTIB, Stentmrj, January 6, 1842 ....- 190

JannarySD, 1842 tf

Febmaiy 26, 1842 34M

April 5, 1842 m,W,UU

April 15, 1842 8.S37#

Jane 21, 1842 1^S6B

Jane28, 1842 38

Jnly8,1842 72,171

JolylS, 1842 lOr

Anguat 1,1842 3S, 38,961

Angnate, 1842 21

Aaga8t8, 1842 33,331

Anguat 26, 1842 173

Angnat 27, 1842 52

Angnat 29, 1842 327

Norember 14, 1842 327

December 9, 1842 62

December 20, 1842 827

January 14, 1843 ^

March 28, 1843 827

May 8, 1843 ^

December 21, 1850 47,70,79,3(7

January 13, 1851 »«l

January 29, 1851 Kl

January —, 1851 167*

February 14, 1851 852

February 28, 1851 ^

May 4,1851 8»

May 5,1851 ^

June 19, 1851 «

July 2, 1851'. 35.104

July 14, 1851 68,190,834

August 18, 1851 «2

October 4, 1851 ^

Norember 13, 1851 **

Norember 26, 1851 ^

December 23, 1851 .190, 198, 203, 244, 850

January?, 1852 1 ^

January 8, 1852 ®*

January 12, 1852 ^

March 17, 1852 ^

' April20, 1852 ^

April 29, 1852 ^

June3, 1862 *J

June5,1852 ^JJ

August 12,1852 J;

August 21, 1852 .; ^

August30,1862 *"

Correspondence o^ with Mr. Cass on Ashbnrton trssty . . ^^

publications as to Ashbnrton treaty *"

speech on Treaty of Washington, April 6, 7, 1846 **

on northeastdm boundary

at Kossuth reception

on Monroe doctrine, April 14, 1826

822

INDEX.

8XCTI0N.

, action of GoTemment as to.. ; 220

"Smxajl, fttedomot 30

icretaryof the Navy, October 1, 1861 385

B8, extent of territorial waters of 32

intervention in respect to 57,60

policy of the United States towards 73

H.y as to dnty of carrying ont treaties, letter, January 20, 1836 .. 9, 131a
minister to Denmark, as to claims against Denmark, letter, Korem-

berlO, 1843 399

>naUtyof 186

CASE 270

, cannot be examined under oath by Department 218

o^ foreign relations of • 63

Ing of port of 68

[lister at China, Febmary 11, 1884 361a

tnish minister 84,97, 106

[uestion as to annexation of 57,73

■BRf freedom of 30

ne, effect of 38

heries 303/,305

aion Ton, letter on neutral duties, October 15-29, 18C1— 894

S23

TABLE OF OASES.

SECTION.

The, 6 WaU., 266 329,345, 3^

), The Schooner, 9 Cranoh, 244 329, 330,345

p. Alston, 15WalL,355 356

kl, The, 3 WaU., 603 359,360,362

oe V. Lftgrave, 69 N. Y., 110 279

;are, The, 8 Cranoh, 221. 329

ig. In re, 18 Fed. Hep., 28 138

b V. Massieu, 98 U. 8., 491 4,201

aav. Georgia, 23 How., 505 30

The,v. Moran, 9Cranch, 359 330,345,396,400

der. The, 8 Cranch, 169 330

ider's Cotton, 2 WaU., 404 338,352,353

iderv. Bonlet, 13 Wall., 386 5a

I, The, 1 Cranoh, 1; 4Dall., 34 8

■an Ins. Co. v. 356 Bales of Cotton, 1 Pet., 511, 542 ! 3, 133, 161a, 355

le Isabella, The, 6 Wheat., 1 133,161,329.330

leNanoy, The,3Wheat., 546 228,330,385

d de Knes, 5 Wheat., 385 329,396,400

d,The, 15 Pet., 518 133

Tarwick, The, 2 Spragne, 123 ...329,335,362

Qeda, The, 2 Wall., 481 ...1 361

ca de la Baa v. Bayard,4 Maokey, 310 139

he, 1 Gall., 62 32

reen, The, 1 GaU., 274 353

(aria, The, 2 Wheat., 327 .)25,330

The, 3 Wheat., 435 117,123,399

pe, The, 10 Wheat., 66 9,325,380

a Johanna, The, 1 Wheat., 159 ..330,345,352

1, The, 9 Wheat., 368 1,9,14,30

e. The, 2 Wheat., 143 337,345

iias «. Stilhnan, 54 Tex., 623 '. 20

V. Ins. Co., IJohns., 363 120

Dte Barcelones, 7 Wheat., 496 396

The, 1 Wheat.,125 * 385

ta, The, 3 Wheat., 409 343

V. U. S., 8 C. Cls., 427 154

)y-GeneraI V. Sillem, 2 Hnrl. & C, 431 396

, /» rs, 26 Fed. Bep., 848 121

, The, 8 Cranch, 203 330,337,352

rhe, 18 Int. Bev. Bee, 165

825

TABLE OF CASES.

Badger p. Ontiens, 111 U. &,796 41fl»44r

Bftigorrj, The, 2 WalL, 474 ^ ^.ll&,W^m

BaUcj, /• f«, 2 Sawjer, 900 •••.•..— — ^ . — m

Bobcr V Bober, 91 Eaw., 5S m

B«nie«» £s^«>ter 1 Spngne, 133 •••. — ••. .... ...— . 21

Btttram V. Bobertoon, loFedLBep., 912 ...— .. ia!;US

Bm r. Ttngf, 4 DalL, 37, 40 ^ 33I,3S4,3M

hamv, Steele, 3 Waeh., C. C, 381 ^ 41»

BfttMTille loetitote r. Kwiffiman, 18 WalL, 151 3B&

Bftttle, Tbe, 6 WalL, 498 • ^ 3»

BelgeDland, Th^ 114 U. 8., 356 %

BelloCorTanee,Tbe,6Wlie«L, 152 117,121,m,4(tt

Bennnda, The, 3 WaIL,514 342, 315, 382, 373, 38B» an, 393

Betser, The, Bee, 67 396

Beteey Cftthcart, The, Beef992 3K

Bizby V. JaDMen, 6 BUtch«, 315 12»

Blackbornr. Crawford, 3 WalL, 175 SCO

Blight r. Bocheeter, 7 Wheat..535 15a,laOi

Bvrav. PrestOD, 114, U. &,2S2 ITS

Bothnia, The, 2 Wheat., 160 330

Breedlore r. Nicolet, 7 Pet., 413 901

Bridget, £r jMTto, 2 Wooda, 428 21

Briggsv. Light-boata, 11 Allen, 157 • 3S

Brine v. Ina. Co., 96 U. 8., 627 834

Brit. Plate Co. v. Meredith, 4 Term, B., 796 923

Brit. Prisoners, Case ot, 1 Woodbory and Minot^ 66 268

Brooks V.Lindsay, 17 Pick., 441 410

Brothers, The, Bee, 67 306

Blown r. HUtts, 15 WalL, 177 jr,356

Brown v.U. 8.,8Cranch, 110 : 338

Batler, Exparte, 18 Alb., L. J., 369 V9

Cabrera, E»parte, 1 Wash., C.C, 232 • 92

Caignet t. Pettlt, 2 DalL, 234 1^

Caledonian, The, 4 Wheat, 100 328,337,315

Campbell v. Gordon, 6 Cranoh, 175 ^

Campbell v. The Unole 8am, McAllister, 77 124

Cannon«.NewOrleans,20 WalL, 577 37

Carlisle v. U. 8., 16 Wall., 147 203,241

Camealv. Banks, 10 Wheat., 181 135,13^148,201

Carrington v. Ins. Co., 8 Pet, 495 3^380

Castro V. De Uriarte, 16 Fed.Bep., 93. 133,2nii

Charlotte Christine, The, 6 C. Bob.,101 362

Charming Betsy, 2 Cranch, 64 9

Chavasse, ExparU, 34 L. J. N. 8., 17 ^ »1

Cherokee Nation V. State of Georgia, 5 Pet, 1 906

Cherokee Tobacco, The, 11 Wall., 616 138,2U

Cheshire, The, 3 WaU., 231 353,360,368

Chew Heong v. U. 8., 112 U. 8., 636 ^

Chicago and Pacific Railway Co. v. McGlinn, 114 U. 8., 542 ^

Chin A. On, /a re, 18 Fed. Rep., 506 ^*

Chirac p. Chirac, 2 Wheat, 259 138, 148a, 1^,901

826

TABLE OF CASES.

SECTION.

7. Eokhart, 2 How., 344 14S^

Bnbbart, 8 CTmneh, 187, 235 32, 12L

?. Freeman, 92 U. 8., 275 201, 20&

The, 2 Wall., 135 369,881

w Orleans V. Armas, 9 Pet., 224 133

aden, 16 How., 835 131

Ark, 17 How., 315 245

)llet, 2 Dall., 294 173

Vaase, 1 Pet., 193 161a, 221,, 245

1, The, 1 Wheat., 382 ..345.370

Eicon, 10 Serg. and R., 125 279

wes, 13 Bush., 637 279

sloff, 5 Serg. and B., 545 93a

1, 6 Wheat., 235 ..345,399

rig, 9 Cranch, 387 38,330

Ipain V. The Conception, 2 WheeL, Cr. Cas., 597 ; 1 Bninner, Col. Cas.,

, 1 Newb. Adm., 393 362

Hall,7 WalL,542 116,123,337,362

The, 3 Wall., 214 360,362

•adford, 3 Wheat., 594 150, 150a, 201

»lie, 3 Wheat., 563 201

3ader, 21 Mich., 24 : 201

eUy, 16Wall.,610 33

». Wm. Penn, Pet. C. C, 106 393

parte, 2 Curt., 98 • 174

urison, 16 How., 190 3,4,355

. Valle, 1 WalL, 1 201

I r. U. S. 92 U. S., 542 18^

Hale, 91 U. S., 13 126,165^

. Co., 6 Allen, 373 384r

are. The, 5 Wall., 170 362

mcordia, 9 How., 280 4, 5a, 132, 138-

ickard, 7 Pet.. 276 93a, 120*

Sealskins, 2 Paine, 324 65

a V. Pereira, 1 MUes (PhUa.), 366 87

tv. Penniman, lOBlatohfl, 436 9*

U.S.,9Pet., 117 ..4,133,1486,161a

imold, 3 Dall., 333 329*

imeger, 14 Wall., 308 4

inv. Duffy, 14 Pet., 282 342

>, 7 Wall., 354 38,362^

re, 2 Sawyer, 564 98-

itora. The, 4 Wheat, 52 69, 71

lam, 2 B. & C, 779 171

ien, 16 How., 635 1610-

»rte, 3How., 103 21

knos. The, 2 Wheat., 76 199,330, 35*/^

inson, lOOU.S., 158 354

V. Sandford, 19 How., 393 17^

The, 2 Abb., U.S., 20 201*

827,

TABLE OF CASES.

BKCn05.

Vagsku, In re, 2 Low., 267 277

Dupoat V. Pichon, 4 Dall., 321 92

Durand v, Halbach, 1 MUes (Phila.), 46 130

Eastlakev. Rodaguesl, 11 Ba8h,42 801

£ldred, /ii re, 46 Wis., 530 , 20

Eleanor, The, 2 Wheat., 345 325.328,330

Elk r. Wilkins, 112 U. 8., 94 208

Elwine Kreplln, The, 9 Blatch., 438 149

Emnloas, Cargo of ship, 1 Gall., 562 338

Empress, The, Blatch., Pr. Ca., 175 360,382

EDuis v. Smith, 14 How., 422 199,329,330,396

Estrella, The, 4 Wheat., 298 71,385

Ettenbeimer r. Hellmaa, 66 Barb., 374 301

Exchange 9. McFaddon, 7 Cranoh, 116 l,13,17«,34,36,93f

Experiment, The, 8 Wheat., 261 329,383

Panny, The, 9 Wheat., 658 .>. 323,329,396

Fairfax V. Hnnter, 7 Cranch, 603 15O,15Os,201

Farez, /n re, 7 Blatch., 345 27«,163,276i

Fellows 9. Blacksmith, 19 How., 366 139,210,211

Ferry v. Fire Ins, Co., 9 West. Jur., 551 207

Fifieldr. Ins. Co., 47 Pa. St., 166 3»4

Fisher r. Harnden, 1 Paine, 56 138

Fitzsimmons V. Newport Ins. Co., 4 Cranch, 185 15Os,3G0,362

Flemings. Page, 9 How., 603 3,4

Florida, The, 4 Ben., 452 391,393

Flying Send, The, 6 WaU., 263 3«

Foot V. Edwards, 2 Blatch., 310 ^

Ford r. Snrget, 97 U. S., 619 69,384

Forsyth V. Reynolds, 15 How., 538 133

Fortnna, The, 3 Wheat., 236 330,345

Foster r. Neilson, 2 Pet., 253 5,22, 132, 138, 161i, 238

lYanoes, The, 8 Cranch, 335 199,342,352

Frances, The, 8 Cranch, 418 330

France^ Eliza, The, 8 Wheat., 398 319

Francis, The, 1 Gall., 614 353

Francis, The, and cargo, 1 Gall., 445 342

Frederickson V. Louisiana, 23 How., 445 • 136,166

Frelinghuysen r. Key, 110 U. S., 63 138,220

Prevail v, Baohe, 14 Pet., 95 148fl,221

Friendsohaft, The, 3 Wheat, 14 199,330,352

Oalpin V. Page, 18 WalL, 350 *

Garcia r. Lee, 12 Pet., 611 22,132,16li

Oassies r. Ballon, 6 Pet., 761 1^

Gates r. Goodloe, 101 U. S., 612 352

Oelstonr. Hoyt. 3 Wheat., 324 '^

George, The, 1 Wheat., 408 S*

-Georgia, The, 7 Wall., 32 345,393,399

■Georgia, The, lLowell,96 337

•828

TABLE OF CASES.

^ SBCnOK.

In re, 12 Blatch.,371 268,288

?. Crawford, Taney's Decisions, 1 117, 120

loop Betsey, 3 Dall., 6 1, 9, 124. XJO

Prince, 3 Wfsh. C. C, 314 ^ 173

leecetJ. Cable Co., 12 Nev., 312 , 201

r. Russell, 42 N. Y., 177 201

Kerr, 1 Wash. C. C, 322 138

. U. S., 7 Wall., 188 221,23a

•or's Heirs V. Robertson, 11 Wheat., 332 201

'. Stucken, 4 Blatch., 50 120

A, The, 7 Wheat., 471 345,396^

t. The, 9 Wall., 129 354

ket. The, 5 WaU., 342 342,352,353

istomlns. Co. v. U. S., 19 C. Cls., 206 l;i9

il V. Stanforth, 21Iowa, 591 201

i?.Ids.Co.,16 Johns., 346 120

The, OCranch, 368 330-

i r. DiUin, 21 Wall., 73 319, 33r

, The, 5 Wall., 372 330,342,345

P.Anthony, 5 Wheat., 374 30

.Abbott, 6 Wall., 532 337

«. GaiUard, 12 Wheat., 627 5a, 6, 133, 150

. Fisher, 1 Wheat., 300; 8. C. 1 Paine, 55 I50a

The, 1 Wheat., 298 330

r. Vose, 9 How., 372 38

3, 3 Wall., 559 343,3.53^

ckson. The, Blatch., Pr. Ca., 2,41 360«

int>.Lynham,100U. 8.,483 133,138,163,173,174,201

faker, 9 Wall., 32 : 132

Qey Cases, 112 U. S., 580 138

.Brooklyn, 33Barb., 360 201

ae, L. R., 1 Ad. & Ec, 1 375,391

n r. Mayor of N. Y., 92 U. 8., 259 201

n v. Poindezter's Lessee, 12 Wheat., 530 6

iCase.Whart., St.Tr,,49 9,404^

Jw re, 5 Blatch,, 414 277

t;.Bissell,18Wall.,264...- 154

'he, 3 Wall., 768 360

Thomas, In re, »2 Blatch., 370 142

I, The, 2 Black, 677 360,362

Lessee v. Stewart, 3 How., 760 161

n v.Mein, 4 Cranch,415 150

he, 8 Cranch, 444 337

he, 1 Wheat., 440 345

Henning, 17 C. B. N. S., 794 398

r. Henderson, 4 Sandf., 619 93

Joy, I7 Wall., 211 208

. Jennison, 14 Pet., 540 275

p. Bell, 3 Cranch, 454 150

ockhart, 17 Wall,, 570 7

The, 2 Abbott, U. 8., 35 71.

829

TABLE OF CASES.

BKcnox.

Hudson r. Onestier, 6 Cranoh, 381,285 9,339,330

Hnghesv.Edwards, 9 Wheat.,489 201

Hylton t. Brown, 1 Wash. C. C, 343 138

Indian Chief, 1 C. Rob. (Adm.), 26 120

Inglis ». Trustees, &c., 3 Pet., 99 11,187

Jansen V. Vrow Christina, Bee, 11 171

Jeckerv. Montgomery, 13 How., 496 328,329,330,337,354

Jennings V. Carson, 4 Cranch, 2 329

Jenn7,The, 5 Wall., 183 362

John OUpin, The, Blatoh., Pr. Ca., 291 3G2

Johnson V. Falconer, 2 Paine, 601 203

Johnson V. Mcintosh, 8 Wheat., 543 2,209

Jones V. McMasters, 20 How., 8 4,188,201

Jones V. Walker, 2 Paine, 688 133

Jordan V. Williams, 1 Curtis, 69 124

Josefa^gunda,The, 10 Wheat., 312 71,329

Joseph, The, 8 Cranch, 451 345

Joseph, The, 1 OalL, 545 353

Josephine, The, 3 Wall., 83 350,362 '

Josephs r. U. S., 1 Nott. A, H., 197; 2 Nott. & H., 586 5

Jndsonv. Corcoran, 17 How., 612 SM,245

Julia, The, 8 Cranch, 181 337,342

Julia 17. The Cargo, 1 Gallison, 594 337

Kaine, JSxjNirto, 3 Blatchf., 1 : 276

Kaine, in r0, 14 How., 103 276

Kansas Indians, 5 WaU., 737 211

Karrahoo v, Adams, 1 Dill., 344 196

Keener. McDonough, 8 Pet., 308 5f

Kellyr. Owen, 7 Wan., 496 186

Kenneti v. Chambers, 14 How., 38 8,71,396

Ker, i/»re, 18 Fed. Rep., 167; Sup. Ct. U. 8., 1886 270,279

Kershaw r. Kelsey, 100 Mass., 561 337

Kier. U. 8., 27 Fed. Bep.,351 1S9

King of Spain f». Oliver, 2 Wash. C. C, 431 249

Kingsbnry'sCase, 106 Mass., 223 273

Kirtland «. Hotchkiss, 100 U. S., 491 W

La Croix 9. May, 15 Fed. Bep., 236 % ^^

Lagraye, Jn re, 45 How., Pr.,301 279

Lamar 9. Browne, 9211. S., 194 338,353

Lamar 0. Micon, 112 U. 8., 452 183

Langdon Cheves, The, 4 Wheat., 103 S*

Lattiraer r. Poteet, 14Pet., 14 133,211

Leavenworth, Lawrence and Qalveston R. R. Co. v. U. 8., 92 U. S., 733 ^^

Lee V. Rogers, 2 Sawy., 549 337

Legal Tender, The, Wheat. Dig., 302 133

Leitensdorler v. Webb, 20 How., 176 3,4

830

TABLE OF 0A8E8.

SECTION.

Grant, 6 Sawyer, 603 186

. Huutington, 15 Johns., 298 410

Crowuinshield, 2 Maaon, 161 ..•• ...••. 9

. Bramell, 4 How., 449 1485

cCartee, 6 Pet., 102 201

, 2 Spragne, 177 121,329,352,393,399

)le,l Wheat., 238 228,329

aireme, 2 Cranoh, 170 8

1 v.ln8.Co.,7CTanch, 506 352

Ca8e,5C.Cl8.,687 163

leket, The, 5 Wheat., 132 ^ 343

loket, The, 1 Mason, 14 121

»mplin, 21 Fed. Rep., 755 210

Osgood, 1 Spragne, 82 124

Borden,7 How., 1 69

^rima, 8 How., 490 204

7. U.S., 10 Wall., 62 •. .^ 114

re ff. Keating, 2 Gall., 325 370

bonr. The, Blatoh., Prize Cases, 167 38

hattnck, 3 Cranoh, 458 330

9pba, The, 2 WheeL,Cr.Ca8,600; 1 Bninner, CoL Cas., 500 71

Flora, The, 11 Wheat., 1 33,133,325,327,380

Villiam, The,2C.,Rob.,365 388

SVaddeU, 16 Pet., 367 2

S 9 Cranch, 126 329,342,352

►, 2 Wheat., 123 330

Susan, The, 1 Wheat., 46 329,342,350,352

Ins.Co.t>.Wood,7Cranch, 402 t 359

'.Offley, 3 Sumner, 115 124

r.McStea, 91 U.S., 7 337

Marine Ins. Co., 8 Cranoh, 59 359, 362

's Case, 5 Sawy., 630 .^ 174

p. Somenrille, 9 Wheat., 354 201

,/iire, 1 Lowell, 100 202

a. In re, 11 Blatch., 79; 15 Fed. Sep., 332 276

^hr.Dannery,3Dall., 188 3*^9

;h«. Millandon, 3 How., 693 .' 1486

V. Coxe, 4 Cranoh, 209 11,150,186

::;ampbell,2 Sawy., 118 150ii, 188, 196, 208

jkurcia. 6 Benedict, 556 120

J. S., 8 Wall., 163 w 337

Coxe, 18 How., 100 208

9. SaviegQ, 18 How., 235 154,186,201

ise,aNott &H.,224 221,248

r. S., 7 C. Cls., 161 248

r. S., 9 Wall., 691 161a, 221, 248

raders' Bk. V. Union Bk., 22 Wall., 276 354

oClnng, 9 Cranoh, 11 211

Moore, 96 U.S., 76 2C0

The, Blatchf.,Pp. Ca., 260 362

le, 9 Wheat., 391 345

he, 17 Wall., 585 ,,. 410

831

TABLE OF CASES.

Meteor, The, 1 Am. Law Rev., 401, Pamph. Rep 39(^

Metzger, Inre, 5 How., 176 278

Milleri;. The Resolution, 2 Dall., 1 328

Minor r, Happersett, 21 Wall., 165 171

Miss, and Mo. R.R.tj. Ward, 2 Black, 485 ^

Mitchel V. U. S., 9 Pot,, 711 4,5,133,16U

Mitchell V. Harmony, 13 How., 115 338

Mitchell r. U.S., 21 Wall., 350 837

Moncan, In re, 14 Fed. Rep., 44 33

Montault r.U.S., 12 How., 47 4,138

Montgomery t?. U.S., 15 Wall., 395 337

Moodier. The Phcebe Anne, 3 Dall., 319 133,146,396

Morris V. Cornell, 1 Spragne, 62 Mi

Mnmford r. Wardwell, 6 Wall., 423 5»

Murray V. The Charming Betsey, 2 Cranch, 118 8,3SS

Mutual Assurance Soc. V. Watts, 1 Wheat., 279 i

Nancy, The, Bee, 73 , 396

Napoleon, The, Olcntt, s3te 330-

Nassau, The, 4 Wall., 634 3»

Nat. 8. 8. Co. r. Dyer, 1 Sup. C'tRep'r, 58 807

Nayade, The, 1 Newb. Adm., 306 360

Nereide, The, 9 Cranch, 388 8, 9, 133, 161, 199, 318, 325, 327, 342, 343, 34d

Nereide, The, 1 Wheat., 171 330

Neustra Senora de la Caridad, The, 4 Wheat., 497 69, 161,385

Nereyda, La, 8 Wheat., 108 329, 33^

New Orleans ». S. S. Co.,- 20 Wall., 387 ^ 3,337

New Orleans ». U.S., 10 Pet., 662 5,14?^

New York, The, 3 Wheat., 59 A *

Nickerson, J. H., case of (1871) 3W

Norris r. Boston, 7 How., 518 1^

North Noonday Min. Co. v. Orient Min. Co., 1 Fed. Rep., 522 ^'^

Nueva Anna, Jhe, 6 Wheat, 193 71,3i8

Nuestra Sefiora de Regla, The, 17 Wall., 29 3®, 355^

O'Harau.U. S., 15 Pet., 275 1««

Oldfield V. Marriott, 10 How., 146 15tl

Olivera v. Union Ins. Co., 3 Wheat., 183-... ^

Orrr. Hodgson, 4 Wheat., 453 ^'^

Osbom V, Bank, 9 Wheat., 738 ^"^

Osterman r. Baldwin, 6 Wall., 116 **

Otisr. Walter, 2 Wheat., 18 320

Otterbourg V. U. S., 5 C. Cls., 430 ^

Ouachita Cotton, The, 6 Wall., 521 319,3»

0 wings V. Norwood's Lessee, 5 Cranch, 344 • ^

Palmyra, The, 12 Wheat., 1 330, S*

Parham v. Justices, 9 Oa., 341 •• *^

Parlement Beige, The, L. R., 5 P. D., 97 ^

Patterson r. Gaines, 6 How., 560 ^

Pearl, The, 5 Wall., 574 **

832

TABLE OF CASES. *

SECTION.

Doane, 3 Dall., 54..-.^ 329

kvenel, 21 How., 103..' 186

., Barlow 17. Curtis, SON. Y., 321 275

p. Gen. Trans., 107 U. S., 59 201,279

, 45 How. Pr., 296 279

.eod, 25 Wend., 596; 26 Wend., 603 21

Btroit, 16 Fed. Rep., 211 '. 186

3., 3 Wall., 434 5

), 5 Wall., 28 154,325,362,373,375

re, L. K. 6, Q. B., 1,24 r-. 21

ore, 100 U. S., 208 201

Blatch. Pr. Ca.,61 352

L. T. (N. S.), 120 277

■heat., 371 319

2 Wheat., 227 ; 10 N. T. Leg. Ob., 97 36,161,325,330

sr. Union Bank, 16 Wall., 483 4,338,384

js, 2How., 591 161a

3. Rob., 361 388

eev.Hagan, 3 How., 212 4,161, 16la

er, 11 Pet., 185 1

toy, ITeates, 371 171

iunan, 2 Blatch., 164 173

d, The, Blatch. Pr. Ca., 89 * 352

he, 2 Black, 635 69, 71, 333, 352, 359, 360

3, 12 Wall., 700 356

idt, 21 Iowa, 540 201

ise, 7C. Cl8.,402 ! 203

R.2Ex.D.,63;13Cox, C.C.,403 32

I, L.R. IC. C. R., 161 .--.- 35a

jhins, 95 U. S., 210 3:^7

Cranch, 155 329,337

ler, 1 Gall., 303 135,337

JWaU„617 362

g Champs, 1 Dall., Ill 8,92

ie,2Dall., 1 1^

Sprague, 107 360

par^e, 18 Alb. L. J., 8 196

Ins. Co., 6 Mass., 113 391

r. S., 9 Cranch, 102 319,345

, 1 Phill. Int. Law (3d ed.), 544; Bee, 266 ; Whart. St. Tr., 392 ... . 271a
inor, 10 How., 627 5a, 161

Huntress, 2 WaU. Jr., 59 - 117,120

Amado, I Newb., Adm., 383 : 121,35:^

h, 8 Blatch., 304 138,151)

f, 4 Cranch, 241 9,69,71,329

Wheat, 61 337, :M3

8. 1G2— VOL. Ill 53 833

- TABLE OF CASES.

8ECn05.

Sagor}- V, Wissman, 2 Benedict, 240 .*. 190

SaUy, The, 8 Cranch, 382 337

Sally Magee, The, 3 Wall., 451 330

8aD Jo8^ Indiano, The, 2 Gall., 268 ^353

Santa Maria, The, 10 Wheat., 431 331

Santissima Trinidad, 7 Wheat., 233; 1 Brock., 478... 36,161, 171, 176,228,329,390,380,

391,393,396,396,399,401

Sapphire, The. 11 Wall., 164 «9

Sarah Starr, The, Blatchf. Pr. Ca., 69 388

Sattegart v. Schrimpff, 35 Tex., 323 201

Schofield r. Eichelherger, 7 Pet., 586 337

Schwartz v, Ins. Co. of North America, 3 Wash. C. C, 117 343

Scotia, The, 14 WaU., 170 8,86

Scotland, The, 105 U. S., 24 8

Sea Lion, The, 5 Wall., 630 362

Sea Witch, The, 6 Wall., 242 382

Semme8 9.HartfordIns.Co., 13 Wall., 160 337

Shanks v, Dapont, 3 Pet, 242 150,186.188

Shomer's Case, 1 Car. L. Rep., 55 208

Short Staple, The, r. U. S., 9 Cranch, 55 330

Sir WiUiam Peel, The, 5 Wall., 517 329,330,345,399

Siren, The, 7 Wall., 152 229,389.330

Slanghter House Cases, 16 Wall., 79 1S9

Slavers, The, 2 Wall., 350 3«

Snellr.Faussatt, 1 Wash. C.C, 271 354

Society, etc., r.New Haven, 8 Wheat., 464 135,150,201

Society, etc, r. Wheeler, 2 Gall., 105 337

Sophie, The, 6 Rob. Ad., 138 .• 133

Sonlard «. U. S., 4 Pet., 511 148*

Spark, The, r.Lee Choi Chum, 1 Sawyer, 713 1*

Spencer, Inre, 5 Sawy., 195 174

Spes, The, 5 C. Roh., 60 30

Spratt «. Spratt, 4 Pet., 393 173,175

Springbok, The, 5 Wall, 1 368,375

Sprottv. U. S.,20Wall.,459 7

St. Jos6 Indiano, The, 1 Wheat., 46 342,345

St. Lawrence, The, 8 Cranch, 434 337,3I2,3»

St. Lawrence, The, 1 OaU., 467 199

St. Luke's Hospital v, Barclay, 3 Blatoh., 259 Itf

St. Nicholas, The, 1 Wheat, 417 343

Star, The, 3 Wheat, 78 830

Stateof Georgian. Brailsfoid, 3 Dall, 1 190.917

State tax on foreign-held bonds, 15 Wallao6,300 19

State tonnage-tax cases, 12 WalL, 204 37

Steamship Co. v. Port Wardens, 6 WalL, 31 37

Steamsv. U.S.,6WalL, 689 6i

Stewart, r»re,7 Rob.,N. T., 636 173

Stlllman v, Man. Co., 3 Wood, and M., 538..: 20

Stoughton r. Taylor, 2 Paine, 655 392

Strotherv. Lucas, 12 Pet, 410 4,5,133,146>,395

Stmpp, /» re, 11 Blatch., 124 I*

SnlUvan ». Burnett, 105 U. S., 334 »1

834

TABLE OF CASES.

sxcnoK.

<Uibeam, The, Blatoh., Pr. Ctk,, 316, 656 38

UttOD V. Sutton, 1 Bos. & M., 675 302,303

ttggart V. LoriDg, 16 Mass., 336 1 410

Blbot 9. Jansen, 3 Dall., 133 176,350,385,396

Albot V. Seenian, 1 Cranoh, 1 8,333,345

aylor V. Carpenter, 3Story, 458 201

ByloT V. Morton, 2 Curtis, 454 138

ftylorv. Plymouth, 8 Meto., 465 223

Breeita, The, 5 Wall., 180 362

ftxas r. White, 7 Wall., 700 7,11

tiayer p. Brooks, 17 Ohio,489 20

hirty hogsheads of sugar r. Boyle, 9 Cranoh, 191 8,329,338

liomasy/fi r0,12Blat«h.,37O 269

tiomas V. Lane, 2 Sumner, 1 35a

bomas Gibbons, The, 8 Cranoh, 421 337,342

bompson, The, 3 Wall., 155 330,362

hnrlow V. Mass., 5 How., 573 ..^ 173

obin V. Walkinshaw, McAllister, 186 133,188

orlade «. Barrozo, 1 Miles (Phila.), 361 87

ownsend V. Greeley, 5 Wall., 326 4,154

aylor V. Morton, 2 Curtis, 454 159

umer 9. Baptist Union, 5 McLean, 344 132,138,210

jersr.U.S., 5 C. Cls., 509.... 24ri

^ S. «. Acosta, 1 How., 24 • oa

r,8.r.Amedy,ll Wheat., 409 410

r, 8. 9. Amistad, The, 15 Pet., 618 380

r.S.9.Arredondo,6 Pet., 691 5, 132, 133, 161a, 1(55

r.8.9.Auguisola,l Wall., 352 4,133,154

r,S.r.Baker,5Blatch., 6; 1 Bmnner, C. C, 489 71,380,384,385

r. 8. 9. Barber, 9 Cranch, 243 319

r,8.9.Benner, Baldwin, 234 92,93

r 8. 9. Brooks, 10 How., 442 133

r.8.9.Cargoof the£lTeIegrafo,lKewb., Adm., 383 353

r. 8. 9. Cargo of the Fanny, 9 Cranch, 181 319

r. 8. 9. Child, 12 Wall., 232 237

r.8.9.Cityof Mexico, 25 Fed. Rep., 924 1 396

r 8, 9. Clarke, 8 Pet., 436 4

r. 8. 9. Clarke, 9 Pet., 168 161a

r. 8. 9. Clarke, 16 Pet., 231,232 161a

^.8.9. Coombs, 12 Pet., 72 35a

M 9. Cmikshank, 92 U. S., 542 ,..11,173

^8.9.IyAuteriTe,10How.,609 4,133,148ft

^ 8. 9. Davis, 2 Snmn., 482 33a, 268

^•8.9. Delespine, 15Pet.,319 161a

^8. 9. Diekelman, 92 U. S. 520 .35,38, 149, 201, 214, 243, 345, 354, 361, 371

^•8.».Ferreira, 13How.,45,46 161a

[' 8. V. Forty-three gallons of whisky, 93 U. S., 188 211

• S. r. Etta, The, 13 Am. L. J.,38 393

• 8. r. Gillies, Pet., C. C, 159 199

835

TABLE OF CASES.

VKTWS. j

TJ. 8. V. GroBsmayer, 9 Wall., 72 33r \

TJ. 8. ». OuiUem, 11 How., 47 338 )

U. 8. V. Gumet» 2 Dall., 321, Whart. St. Tr., 93 404 j

U. 8. V. Hand, 2 Wash., C. C, 435 98 ■■

U.S. V.Hanson, 16 Pet., 196 ^ 5i

U. 8. r. Hay ward, 2 Gall., 485 3,355

U. 8. t-Heireof Bllll6nx,14How., 189 4

U.S. v. Holmes, 5 Wheat,, 412 S3t

U. S. V. Hatchings, 2 Wheel., C. C, 643 ^ 71

U. 8.r.In8.Co.,22Wall,.99 7

U.S. V.Jones, 3 Wash., CO., 209 410

U. 8. r. Justice, 14 Wall., 635 237

U. 8. V. Kacinski, 2 Spragne, 7 392

U. 8. V. KeUer, 11 Biss., 314 186

U. 8. 9. King, 3 How., 773 161s

U. 8. r. Klein, 13 Wall.. 128 »8

U. 8. V. Klintock, 6 Wheat., 144 W)

U.8.r.Lane,8 Wall., 185 337

U. 8. 9. Lap^ne, 17 Wall., 601 337

U. 8. 9. Liddle, 2 Wash., C. C, 205 92

U. 8. V. Lnmsden, 1 Bond, 5 395

U.8.«.Lynde.llWall., 632 148J,161«

U.8.«.BrigMalekAdhel,2How., 210 3»

U. 8. V. Mills, 12 Pet, 215 161«

U. 8. r. Miranda, 16 Pet., 153 16U

U. 8. i». Moore, 12 How., 209 148^

U. 8. 9. Moreno, 1 Wall., 400 4,138,154

U. 8. V. O'Keefe, 11 Wall., 178 241

U. 8. r. Ortega, 11 Wheat., 467 92,93i,94

U. 8, r. Osborne, 6 Sawy., 406 2«

U. 8. r. Palmer, 3 Wheat., 610 71,380

U. 8. P. Parsons, I Lowell, 107 W

U. 8. V. Payne, 2 McCrary, 289 ; 8Fed. Rep., 883 1»

U.S. P.Peggy, The, 1 Cranch, 109 138,148,148«

U.S.r.Peroheman,7 Pet., 51 4, 132, 161a, 35a

U. S. p. Peters. 3 Dall., 121 3»

U. 8. p. Peterson, 1 Wood. AM., 305 410

U. 8. p. PhiUips, 6 Pet., 776 ^7

U.S. p. Pico, 23 How., 321 5«,71

U. 8. p. Pillerin, 13 How., 9 5a,133

U. 8. P. Pirates, 5 Wheat., 184 39).4lO

U. 8. p. Power, 14 Blatch., 223 W

U. 8. p. Power's Heirs, 11 How., 570 *

U. 8. p. Qaincy, 6 Pet., 445 39,»6

U.S. p. Quitman, 2 Am. L. Reg., 645 ^

U.S.p.Raiid, 17 Fed. Rep., 142 3« j

U. 8. p. Reading, 18 How., 1 178,«^ ^

U. 8. p. Reese, 92 U. 8., 214 » ;

U. 8. p. Repentigny, 5 Wall., 211 4.6.150,1^

U. 8. p. Reynes, 9 How., 127 4.5«.22,132,W**

U. S. p. Rhodes, 1 Abb., U. 8., 28 175

U. 8. p. Rice, 4 Wheat., 246 3,334

U. 8. p. Rogers. 2 Snmuer, 342 <1*'

836

TABLE OF CASES.

SECTION.

tJ.8.r.Bo8e, 23 How., 262 5a

U. 8. V, RoBcUus, 15 How., 36.* 4

U. S, V. Euaaell, 13 Wall., 623 338

U.S.r.Seagri8t,4Blatclif.,421 410

U. S. V. SeTODteen hundred and fifty-tix aharea of capital stock, 5 Blatch, 232 . . . 238

U. S. r. Sheldon, 2 Wheat,, 119 337

r.S. v.Siz Boxes of Arms, 1 Bond., 446 337

U.S. f. Skinner, 2 Wheel., C. C, 232 392

U. 8. p. Smith, 5 Wheat., 153 380

U. 8. r. Turner, 11 How., 663 4

U.S.r. Tyson, 11 Wall., 88 175

U. S. ». Vaca, 18 How., 556 5a

U.S.r.Villato, 2pall., 370 173

U. S. V. Wiltberj^rer, 5 Wheat., 76 35a

U.S.«.Yorba,l Wall., 412 5a, 71, 355

University v. Finch, 18 Wall., 106 337, 352

•Urt«tiqui v. D'Arbel, 9 Pet., 699 195

Tenice, The, 2 Wan., 258 3,352

Venus, The, 8 Craooh, 253 199,352

Wadge, III r0, 16 Fed. Rep., .332 ^ 277

IValker's Executors v. U. 8., 106 U. 8., 413 338

Ware «. Hylton, 3 DaU., 199 138,150.240,338

Wendoverv. Hogeboom, 7 Johns., 306 ..•• 410

White Fawn Case, 3 Hai. Com., 3382 304

White's Bank v. Smith, 7 WalL, 666 410

Whitney v. Robertson, 21 Fed. Rep., 566 138

William Bagaley, The, 6 WalL, 377 SS4«, 337, 345, 352

WUliam Harris, The, Ware, 367 125

William King, The, 2 Wheat., 148 320

Williams V. Armroyd, 7 Cranch, 423 329

Williams V. Suffolk Ins. Co., 13 Pet., 416 ^ 122,65,71

Williams' Case, Whart. St. Tr., 662 171,404

Wilson V. McNamee, 102 U. S., 674 83

Wilson V. The Mary, GQpin, 33 124

Wren, The, 6 Wall., 582 362

Wooster «. Man. Co., 31 Me., 246 20

Worcester V. State of Georgia, 6 Pet., 667 4,208

Wright r. Tebbltts, 91 U. 8., 25« 245

Teaton v. Fry, 5 Craneh, 335 362

Teaker v. Teaker, 4 Mete., 33 201

7onng V. U. 8., 97 U. 8., 39 903,243

837

1 i

i^mt

A.PPENDIX

n this appendix are introduced documents which isstied since the first
edition went to pressy together with others which were inadvertently
emitted in that edition*]

§2.

DISCOVEEY THE BASIS OF TITLE.

'^ When any European nation takes possession of any extensive sea-
>ast, that x>ossession is understood as extending into the interior coun-
y to the source of the rivers emptying within that coast, to all their
'anches and the country they cover; and to give it a right in exclusion

all other nations to the same. • • • Whenever one European
tion makes a discovery and takes possession of any portion of that
titinent and another afterwards does the same at some distance from

where the boundary between them is not determined by the principle
ove mentioned, the. middle distance becomes such of course. • • *
benever any European nation has thus acquired a right to any por-
>n of territory on that continent, that right can never be diminished

affected by any third power by virtue of purchases made, by grants,
' conquests of the natives within the limits thereof."

Messrs. Pinckney and Monroe to Mr. Cevallos, Apr. 20, 1805. MSS. Dispatches,
Spain. 2 Am. St. Pap. (For. Rel.), 664.

'^The two rules generally, perhaps universally, recognized and conse-
'ated by the usage of nations, have followed from the nature of the
ibject. By virtue of the first, prior discovery gave a right to occupy^
"ovided that occupancy took place within a reasonable time and was
timately followed by permanent settlement and by the cultivation of
e soil. In conformity with the second, the right derived from prior
scovery and settlement was not confined to the spot so discovered or
st settled. The extent of territory which would attach to such first
scovery or settlement might not in every case be precisely determined,
it that the first discovery and subsequent settlement within a reason-
lie time, of the mouth of a river, particularly if none of its branches
A been explored piior to such discovery, gave the right of occupancy
id ultimately of sovereignty to the whole country drained by such
rer and its several branches, has been generally admitted. And in

839

§§ 4, 5.]

APPENDIX.

n question between the United States and Great Britain her actsliave
witb propriety been appealed to as showing that the principles on vhich
they rely accord with their own.''

Mr. Gallatin to Mr. Addington, Dec. 19, 18*%. MSS. Dispatches, Gr. Brit. 6 Am.
St. Pap. (For. Rel.), 667.

^' Vatt^l, § 208 (in translation), says:

" ' The law of nations will therefore not acknowledge the property and
sovereignty of a nation over any uninhabited countries, except those of
which it has really taken possession, in which it has formed settlemente,
or of which it has actual use. In effect, when navigators have met
with desert countries in which those of other nations had in their tran-
«sient visits erected some monuments to show their having taken 8ome
possession of them, they have paid as little regard to that empty cere-
mony as to the regulations of the Popes who divided a great part of
the world between the Crowns of Castile and Portugal.'

"Martens wrote in 1789 to the same effect in his Pricyf du droit det
gem^ § 37 ; and so did Kluber in 1819 in his Droit des genSj § 126.

*' The principle and rule to be deduced respecting title to unoccupied
regions, or those in the possession of the aboriginal inhabitants, from
the writings of the accepted teachers of public law, are that acqaisition
and title may be original and derivative ; that original title inclodes
discovery, use, and settlement, which are ingredients of occupatioD,and
will constitute a valid title, but that derivative title comes of conqnest,
treaty, and transfer. My opinion is that the English title to sovereignty
and dominion in the province of New Netherlands and the colony of
New York was not original in this sense, but was derivative firom con-
quest.''

Opinion of Mr. Sidney Webster on the law of marriage in New York in 1778.

CONTINUITY OF LAWS.

In Campbell v. Hall, Oowp., 204, (S. C, under title " The island of
Granada," 20 St. Tr., 239,) it was declared by Lord Mansfield that "a
country conquered by the British arms becomes a dominion of the King
in right of his Grown, and therefore necessarily subject to the legislative
powers of the Parliament of Great Britain." ^' It was also declared that
the laws of a conquered country continue until they are aUered by (^
conqueror.^ The latter position was approved by Lord EUenborongbin
Picton's case, 30 St. Tr., 943.

See Dana's Wheaton, note 169.

§3.

BURDENS PASS TO NEW SOVEREIGN.

<^ Upon the general question of the binding effect upon Pern of con-
tracts made by the Pierola and Iglesias governments in accordance with
the constitution and laws of that country, the opinion of this Depart-
ment is that the performance of such engagements is obligatory upon
the present Peruvian Government, and that the attempt on the part
of that Government to avoid such contracts, thus denying the capacity

840

TERRITORIAL RIGHTS. [§ 8.

•Of the Pierola and Iglesias governments to contract, in violation or dis-
I'tfgard of the vested rights of citizens of the United States, would afford
just ground for complaint. For the greater part of six years, from 1870
uijtil 1885, either the Pierola or the Iglesias government was recognized
by foreign powers as the Government of Peru. The United States, in
common with other nations maintaining diplomatic and commercial re-
lations with that country, took no part in the civil conflict which raged
liom time to time during that period, but acted upon the principle of
recognizing as the lawful Government of Peru that political organiza-
tion which was able to maintain the diplomatic and commercial rela-
tions of the country with foreign nations; the acts of such a Government
being universally admitted as binding upon the country which it repre
seuts.

'*This i)rinciple holds even where a change in the form of a Govern-
lueut occurs, and it applies still more strongly where the change is
tuerel^' in the personnel of the Government. Contracts made by a Gov-
L^rument are to be regarded as the obligations of the nation it repre-
kH5ut8, and not as the personal engagements of the rulers. Hence,
although the Government may change, the people remain bound."

Mr. Bayard. Sec. of State, to Mr. Buck, Sept. 23, l;i86. MSS. Inst., Peru. See
9upra, $} 137, 236.

^8.
LAW OF NATIONS PART OF LAW OF LAND.

The law of nations includes as part of itself the law of a port in
which a merchant ship ma}' be moored, so far as concerns crimes in
Buch vessel disturbing the peace of the port.

Mr. Bayard, Sec. of State, report ia Pelletier's case, Jan. 20, 1887. Sen. Ex*
Doc, 49th Cong., 2d sese. See infra, $ 35a.

^A. question may be raised, does this customary law of nations, as
established in Europe, bind the United States t An affirmative answer
to this is warranted by conclusive reasons.

'' 1. The Unit^id St-ates, when a member of the British Empire, were,
in this capacity, a party to that law, and not having dissented from it,
vrhett they became independent, they are to be considered as having
continued a party to it. 2. The common law of England, which was
and is in force in each of these States, adopts the law of nations, the
{>ositive equally with the natural, as a part of itself. 3. Ever since we
Lave been an independent nation we have appealed to and acted npon
the modern law oi nations as understood in Europe. Various resolu-
t:ions of Congress during onr Revolution, the correspondence of execu-
tive officers, the decisions of our courts of admiralty, all recognized
this standard. 4. Execntive and legislative a *ts and the proceedings
of our courts under the present Government 8i>c k a similar language.
The President's proclamation of neutrality refer.-, expressly to the mod-
ern law of nations, which must necessarily be uuile)>tood as that pre-
x^ailing in Europe and acceded to by this couuti\ : ami the general
voice of our nation, together with the very argumcLV- used against the
t:ivi:ty, accord in the same point. It is indubitable i jat the customary

S4I

§ 10, 14.] APPENDIX.

laws of European nations is a part of the common law, and, by adoiK
tiou, that of the United States."

Hamilton : L«tlerB of Camilla a» No. 20. 5 Lodge's Hamilton, 89.

$ 10.
TAXES.

Ju instructions by Mr. Fish to Mr. Davis, Xovember 21, 1874 (For.
Bel. 1875, part i, 488), it is assumed that income taxes can be imposed
upon '^resident aliens.''

As a general mle, poll taxes, and taxes based on personal allegiance, are detenniD-
able by the lex domieiUif while the taxes dae on property which has a perBooal ait
are determinable by the lex $Uiu. See Whart. Conf. of Laws, $$ (3, 79, 80, 363, M
As between the several States in the United States, the question of liability for poQ
and personal taxation is determinable by the lex (fomieilti, and so are taxes on snccM-
sion. As to income taxes, more difficult questions arise. During the late civil vir
the United States Government imposed an income tax on resident sdieos. In Ger-
many and in England such taxes are imposed on aliens after a residence of a desig-
nated period. Certainly when a citizen of the United States resides in a foreign coon-
try for a period so long as to sustain the presumption that he has abandoned bi»
native allegiance, then he is open to be taxed as to income in the place of hia resi-
dence. Local laws, however, imposing such taxes on a mere transient residence hire
no extraterritorial force. The proper course for a citizen of the United States tixed
under such laws, on a mere transient residence, is to pay under protest, so that tbe
question can be one of diplomatic adjustment.

It has been held in England that an income t«x could be levied in England od the
profits of a trade carried on in England by foreigners through an agent resident in
England. (Pommery r. Apthorpe, Q. B. Div., Dec. 17, 1886 ; 35 Alb. L. J., 437.)

In Att'y-Gen. v. Coote, 4 Price, 183, it was held that a statute imposing a datr oa
the property of persons residing in Great Britain applies to persons residing there
for any length of time, however short, although they may at the same time nive s
more permanent residence elsewhere.

§U.

SEIZURE OF PERSONS IN FOREIGN TERRITORY.

<' I transmit herewith for your information copy of a detailed report,
with accompanying papers, received from Mr. E. D. Linn, United Stated
consul at Piedras Negras, tonching the recent kidnapping of Francteoa
Arresures by the coUnsion of officers of the State of Goahuila and of
Maverick County, Texas, nnder circumstances which leave no reason-
able doubt that a brutal murder was the object and result of the snc-
cessfnl attempt of the Goahuila officials to get unlawful possession of
Arresures.

<' You have been heretofore instructed to ask for an investigation of
Arresures's murder and the punishment of the guilty parties. YoorXo.
283, of the 3d instant, reports that you have done so, and a telegram
received from you yesterday, August 13, is understood to commanicate
the Mexican reply to your application. It states that the goveroment
of Goahuila claims Arresures as, by law, a Mexican and a fugitive from
iustice. After extradition, and while being conducted to the court, be
took flight, and in subsequent pursuit was killed.

"The testimony now before the Department shows that such a reply
on the part of the Government is evasive and inaccurate.

** The citizenship of Arresures is not material. He appears to bave
resided for some Tc»ar$ :n the (Jnitcd States, and there to have declaretl

842

SOVEREIGNTY OVER WATER. [§§ 30, 32^

his intention to become its citizen. He was therefore not merely under
the protection which the laws of the United States and of the State of
Texas, where he had his residence, throw over him as an alien resident,,
bat entitled to the pecnliar protection, as against any nnlawfal exer-
cise of authority emanating from the land of his origin, with which our
laws invest those aliens lawfully within their jurisdiction who have ac-
quired rights of inchoate citizenship by duly making declaration of in-
tentiou to become citizens.

^^ Under any circumstances, being accused of crime committed in
Mexican jurisdiction,he could only be demanded from the United States,.
within whose jurisdiction he was alleged to have taken refuge, in ac-
cordance with the provisions of the treaty of extradition of December
11, 1861, between the United States and Mexico."

Mr. Bayardi Sec. of State, to Mr. Jackson, Aug. 14, 1B86. MSS^ Inst., Mex. y
For. Rel., 1886.

$30.
SOVEREIGNTY OVER RIVERS.

^<But neither the lakes nor the public rivers of the United States are
in the Federal sense highways of the State. A vessel after leaving a
port of a State on a public river is on a national highway, subject to-
State jurisdiction for some limited police purposes which are subordi-
nate to the paramount right of navigation, and the naviga ble rivers are
as much national highways as the high seas are international.

^^The littoral jurisdiction of a State, although extending for some pur-
X>oses beyond low- water mark, is subject to the paramount right of nav-
igation as a highway of the nation, in the same manner as the sea
within the three-mile zone from the shore is subject to the right of navi-
gation by foreigners without becoming subject to the local law. Such
waters are considered as the common highway of nations, aod the juris-
diction of the local authorities exists only for the protection of the coast
and its inhabitants, not to subject passing vessels to the local law of
the government of the shore.

^*' Such rivers within the boundaries of a State are navigable waters of
the United States and are national and not State highways, and the-
control of the General Government extends over all vessels engaged in
their navigation where such rivers may be made the means of inter-
state commerce, and even canals are now considered public waters over
which the admiralty jurisdiction extends."

Henry's Adm. Jaris., { 12.

But while such is the case, all crimes on board vessels in foreign ter-
ritorial waters are, when they disturb the peace of the waters or the*
shore, cognizable by the sovereign of such waters or shore.

See Wnart. Crim. Law, 9th ed., $$ 269/.

5 33.
MARINE BELT.

" It will be found, on an accurate inquiry, that all the prizes brought
in under French commissions that have been restored, have been found
to be in one or the other of the following descriptions :

'* * 1. Those captured within a marine league of the shores of the Uni»
ted States.

^ 33, 35a.]

APPENDIX.

hi;

" '2, When the capturing vessel was owned and imncipally mauned
by American citizens.
'' ' 3. When the capturing vessel was armed in oar ports.'
"As to the jurisdiction exercised by the United States over the sea
contiguous to its shores, all nations claim and exercise such ajarisdic-
tion, and all writers admit this claim to be well founded ; and they
have differed in opinion only as to the distance to which it may extend.
Let us see whether France has claimed a greater or less extent of do-
mionion over the sea than the United States. Valin, the Bang's advo-
-cate at Rochelle, in his new Commentary on the Marine Laws of France,
published first in 17G1, and again by approbation in 1776,* after men-
lioning the oi)iuiou8 of many difl'erent writers on public law on this snb-
ject, says : ' As far as the distance of two leagues the sea is the domio-
ion of the sovei eigu of the neighboring coast, and that whether there
be soundings there or not. It is proper to observe this method in favor
of states whose coasts are so high that there are no soundings close to the
shore, but this does not prevent the extension of the dominion of the sea,
<is icell as in respect to jurisdiet ion as to fisheries, to a greater distance by
particular treaties, or the rule hereinbefore mentioned, which extends
dominion as far as there are soundings, or as far as the reach of a cannon
shot ; which is the rule at present universally acknowledged^ ' The eflect
-of this dominion,' the same author says, 'according to the principles of
Puffendorf, which are incontestable, is that every sovereign has a rigbt
to protect foreign commerce in his dominions as well as to secure it
from insult, by preventing others from approaching nearer than a cer-
tain distance.' In extending our dominion over the sea to one league^
we have not extended it so far as the example of France and the other
powers of Europe would have justified. They, therefore, can have no
right to complain of our conduct in this respect."

Mr. HamUton in '<The Answer.^ 5 Lodge's HamUton, 351

§a3.

LAW OF FLAG.

See on this head Hathaway v. The Brantford City, Diet. Ct. 8. D. New Toik,
Dec. 2, 1386. 29 Fed. Rep., 373.

§ 35a.

LAW AS TO OFFENSES IN PORTS.

^* It is now to be considered whether the acts in question {consisting
•of an attempt in a Haytian port to entice Haytians on board to be car-
ried off as slaves, followed by forcible resistance to arrest), committed
as they were in Haytian territorial waters, constituted an attempt at
slave- trading. In answering this question it is important to remem-
ber that both by our own common law and by the French law a pan*
ishable attempt is an intended unfinished crime. It requires four con-
stituents : First, intent ; secondly, incompleteness ; thirdly, apparent
adaptation of means to end ; and fourthly, such progress as to justify

-Book 5, Title 1.

844

OFFENCES IN PORTS. [§350'.

•

the iuference that it would be consammated unless iutenup^.ed by cir-
camstances independeut of the will of the atteiuptor. Nowhere are
these distiuctious laid down more authoritatively thau by Rossi, Orto-
lan, and Lelifevre, when commenting on Article I of the French Penal
Code, which declares that ' toute tentative de crime * * * est con-
%idir6e cotnme le crime menie.^

^'I cite these high authorities in French jurisprudence because it is
important to show that the Haytian courts, when laying; down the law
in this respect, did so in accordance with the law accepted in Hayti as
part of the jurisprudence of France. But I do not cite the numerous
cases in which the same law had been laid down in England and in the
United States. It is enough now to say that it is an accepted principle
in our jurisprudence that an attempt, as thus defined, is as indictable
in our courts as is the consummated crime of which it was intended ta
be a part, and that under the indictment for the consummated crime,,
there may be now, both in England and in most of our States, a convic-
tion of the attempt. While it is not indictable, for instance, to buy a.
box of matches, it is indictable to carry a match to a hay-rack for the
purpose of igniting it, a purpose which is only prevented by a police-
officer stepping in. While it is not indictable, also, to have in posses-
sion materials for skeleton keys, it is indictable to carry skeleton keys
manufactured from such material to a house which it is designed ta
enter, though the intent be frustrated by the owner's watchfulness. It
is not indictable, also, to own poison, but it is indictable knowingly to
place it where it is likely to destroy human life unless removed by some
extraneous agency. In cases of this class there can be convictions of
attempt in any jurisdiction in which the final application of the prepa-
rations to the objecj; takes place.

^' After a careful examination of the evidence in this case, I have
come to the conclusion that Pelletier's action in the territorial waters of
Hayti constitutes an attempt at slave trading, viewing attempt in the
sense given above. There is no question as to Pelletier's intent;
there is no question that the crime was left unaccomplished ; there is
no question that this failure of completion was owing to the forcible
interference of the Haytian authorities. There is only one other con-
dition to be considered, that of the adaptation of means to end. And
as to this point I have no doubt. I can conceive of no means more fully
adapted to carry out his atrocious purpose than those brought by him
into operation in the secluded harbor of Fort Libert^. There, in waters
not visited by other shipping by which he might be watched, unguarded
by armed cruisers which could search his vessel on the first suspicious
sign, and in close proximity to a rural population of negroes whose race
simplicity and credulousness were likely to be increased by their isola-
tion, he, as we may infer from the evidence, a veteran slave-kidnapper,
took a vessel which in prior cruises had shown her adaptation to slave-
trading, and thru put a false French name on her stem, and assumed^

845

4 35a.] APPENDIX.

A false French name for himself, so as to do away with any suspicion
connecting him with the former outrage at Port-au-Prince. He had
several devices ready by which he could inveigle ou board doe qnota
from that population. He had a guano island to talk about, forwbich
he wanted laborers, male and female, though he had not a single imple-
ment ou board to dig out and prepare the guano on that island, if
«ver it should be reached. He had some other work to do on some
other island for which he required help. He was to give a bail, to
which a number of Haytians, male and female, sufficient to make up
his eargo, were to be invited; and in order to make the invitation
appear more considerate, and the expected entertainment more fes-
tive, as well as to throw a cloak over his infamous antecedents, his
own name and that of his ship, as has been said, were changed to
names more distinctively French, and his men, mostly French, were
ordered to talk French. ^Choice liquors' in s^undance also were at
hand, so that the victims, after the dance, ciould be sufficiently stapefied
so as to make their subjugation more easy. Then, whatever were the
means by which the requisite number of Haytians were to be enticed on
board, every precaution was taken for stifling their cries, for secaring
their persons, and, if their resistance could not be otherwise overcome,
for taking their lives. Handcuffs enough there were for the ring-leaders,
and in numbers so great as to be incapable of explanation in any other
way. There was the material for the re-erection of the old slave-deck,
under which the captives were to be compressed. There were the*re-
volvers' and other fire-arms with which the crew, a body of infamons
desperadoes, expecting to share in the spoil, were to be armed, and
there was the capacity of that crew for the use of such weapons, as
shown by the volleys they fired at the Haytian barges which sought
their arrest. Had a vessel with hot shot taken its place in those tran-
quil waters before the hamlets in which that ignorant and confiding
people was gathered, had the guns been loaded for the purpose of de-
stroying the homes and lives of that people, had gunners standing at
their guns been arrested at the moment before the expected discharge,^
while the crime intended would have been less execrable than that de-
signed by Pelletier, it could not have been more subject to Haytian juris-
diction. For by Pelletier there was then placed in those territorial
waters of Hay ti to operate on that Haytian shore a mechanism of atroc-
ity adjusted with peculiar skill to the consummation of what I believe
to be a crime among the worst known to our laws, because it combines
abduction, torture, enslavement, assassination, coupled with the infliction
of a curse heavier than all others, both on the people from whom the
victims are torn and the people by whom they are received. It is im-
possible for me to hold that such an attempt was not within the jans*
diction of Hay ti, and it seems a mockery to assert that the guilty parties
are to elude Hay tian jurisdiction on the pretense that anchoring a slave
ship in Haytian waters, with every contrivance to entrap and enslave

846

OFFENCES IN PORTS. [§ 35a.

Saytiau citizens, is not disturbing the tranquillity of those waters, even
'Choagh, on the discovery of the conspiracy, on the eve of its consum-
nation, the slaver, in seeking to escape, fired on its pursaers. Such
£ring was part of one and the same outrage. I can conceive of no more
Vagrant disturbance of the tranquillity of territorial waters than these
:£acts disclose.

^' The view here maintained, of the j urisdiction of the sovereign of ter-
ritorial waters of offenses committed in such waters, when of a charac-
ter calculated to disturb the peace of the port, is sustained in the case
of Mali V. Keeper of Jail, decided this week by the Supreme Oourt of
the United States. From the opinion in this case of Chief-Justice
l^aite, which I am permitted to cite in advance of publication, occurs
the following :

'^ *• It is part of the law of civilized nations that when a merchant ves-
<6el of one country enters the ports of another for the purpose of trade,
it subjects itself to the law of the place to which it goes, unless by treaty
or otherwise the two countries have come to some different understand-
ing or agreement ; for, as was said by Chief-Justice Marshall in The
^Exchange, 7 Cranch, 144, it would be obviously inconvenient and dan-
gerous to society, and would subject the laws to continual infraction,
^nd the Government to degradation, if such • • • merchants did
not owe temporary and local allegiance, and were not amenable to
the jurisdiction of the country. United States v, Diekelman, 92 U. S.,
^20 ; 1 Phill. Int. Law {3d ed., 483), sec. cccli ; Twiss's Law of Nations
in Time of Peace, 229, § 159 ; Creasy's Int. Law, 167, § 176 ; Halleck's
Int. Law (Ist ed.), 171. And the English judges have uniformly rec-
ognized the rights of the courts of the country of which the port is
part to punish crimes committed by one foreigner on another in a for-
eign merchant ship. (Begina v, Cunningham, Bell C. C, 72 ; S. C, 8
CJox O. C, 104? Kegina v. Keyn, 11 Cox C. C, 198, 204 j S. C, L. R.,
1 0. C, 161, 165 ; Regina v. Keyn, 13 Cox C. C, 403, 486, 525 ; S. C, 2
Ex. Div., 63, 161, 213.) As the owner has voluntarily taken his vessel
for his own private purposes to a place within the dominion of a Gov-
ernment other than his own, and from which he seeks protection during
his stay, he owes that Government such allegiance for the time being
as is due for the protection to which he becomes entitled.

<^ ^ From experience, however, it was found long ago that it would be
beneficial to commerce if the local Government would abstain from in-
terfering with the internal discipline of the ship and the general regula-
tion of the rights and duties of the officers and crew towards the vessel
or among themselves. And so by comity it came to be generally under-
stood among civilized nations that all matters of discipline and all
things done on board which affected only the vessel or those belong-
ing to her, and did not involve the peace or dignity of the country,
or the tranquillity of the port, should be left by the local Government
to be dealt with by the authorities of the nation to which the vessel

847

§ 38.] APPENDIX.

beloDged as the laws of tbat natiou or tlie iaterests of its commeice^
should require. But if crimes are comoiitced on board of a character
to disturb the peace and tranquillity of the country to which the vessel
has been brought, the offenders have never by comity or usage heen
entitled to any exemption from the operation of the local laws for their
punishment, if the local tribunals see fit to assert their authority."'

Mr. Bayard, Sec. of State, Report on PeUetiePs case, Jan. 20, 1887. Sen. Ex.
Doc. 64, 49th Cong., 2d sess.

§ 38.
NECESSITY VACATE8 PORT LAW.

" Were there no treaty relations whatever between the United States
and Great Britain, were the United States fishermen without any other
right to visit those coasts than are possessed by the fishing craft of aDj
foreign country simply as such, the arrest and boarding of the Grimes,
as above detailed, followed by forcing her into the port of Shelbame,
there subjecting her to fine for not reporting, and detaining her autil
her bait and ice were spoiled, are wrongs which I am sure Her Majesty's
Government will be prompt to redress. No Governments have been
more earnest and resolute in insisting that vessels driven by stress o(
weather into foreign harbors should not be subject to port exaction.<«
than the Governments of Great Britain an d the United States. So far
has this solicitude been carried that both Governments, from motives
of humanity, as well as of interest as leading maritime powers, have
adopted many measures by which foreigners as well as citizens or $uti
jects arriving within their territorial waters may be protected from the
perils of the sea. Por this purpose not merely light-houses and light-
ships are placed by us at points of danger, but an elaborate life-saviu^'
service, well equipped with men, boats, and appliances for relief, stud*
our seaboard in order to render aid to vessels in distress, without re^T'ii^
to their nationality. Other benevolent organizations are sanctioned by
Government which bestow rewards on those who hazard their lives in
the protection of life and property in vessels seeking in our waters
refuge from storms. Acting in this spirit the Government of the Unittd
States has been zealous, not merely in opening its ports freely, withoot
charges, to vessels seeking them in storm, but in insisting that its own
vessels, seeking foreign ports under such circumstances, and enln-
sively for such shelter, are not under the law of nations subject to cus-
tom-house exactions.

" * In cases of vessels carried into British ports by violence or stre^^
of weather [said Mr. Webster in instructions to Mr. Everett, Jane 2S,
1842] we insist that there shall be no interference from the land with the
relation or personal condition of those on board, according to tbe hi^s
of their own country; that vessels under such circumstances shall en-
joy the common laws of hospitality, subjected to no force, entitled to

NECESSITY VACATES PORT LAW. [^38.

have their immediate wants and necessities relieved, ami to pursue their
voyage without molestation.'

"In this case, that of the Creole, Mr. Wlieaton, in the Revue Frau-
(aise et £trang^re (ix, 345), and Mr. Legare (4 Op., 98), both eminent
publicists, gave opinions that a vessel carried by stress of weather or
forced into a foreign port is not subject to the law of such port ; and
this was sustained by Mr. Bates, the umpire of the commission to whom
the claim was referred (Rep. Com. of 1853, 244, 24")):

<* < The municipal law of England [so he said] cannot authorize a mag-
istrate to violate the law of nations by invading with an armed force the
Vessel of a friendly nation that has committed no offense, and forcibly
^lissolving the relations which, by the laws of his country, the captain
)B bound to preserve and enforce on board. These rights, sanctioned by
the law of nations, viz, the right to navigate the ocean and to seek shel-
ter in caae of distress or other unavoidable circumstances, and to retain
Over the ship, her cargo, and passengers, the law of her country, must
be resi>e<*.ted by all nations, for no independent nation would submit to
their violation.'

^< It is proper to state that Lord Ashburton, who conducted the con-
troversy in its diplomatic stage on the British side, did not deny as a
general rule the propositions of Mr. Webster. He merely questioned
the applicability of the rule to the caseof the Creole. Nor has the prin-
ciple ever been doubted by either Her Majesty's Government or the
Oovernment of the United States ; while, in cases of vessels driven by
Btorm on inhospitable coasts, both Governments have asserted it, some-
times by extreme measures of redress, to secure indemnity for vessels
Buffering under such circumstances from port exactions, or from inju-
ines inflioted from the shore.

" It would be hard to conceive of anything more in conflict with the
liamaue policy of Great Britain in this respect, as well as with the law
of nations, than was the conduct of Captain Qaigley towards the ves-
sel in question on the morning of October 8.

*^ In such coasts, at early dawn, after a stormy night, it is not unusual
^r boats, on errands of relief, to visit vessels which have been strug-
Slii^g with storm during the night. But in no such errand of mercy
'Was Captain Quigley engaged. The Marion Grimes, having found shel-
t^er during the night's storm, was about to depart on her voyage, losing
Ho time while her bait was fresh and her ice lasted, when she was
l)oarded by an armed crew, forced to go seven miles out of her way to the
S>ort,and was there under pressureof Captain Quigley, against the opin-
ion originally expressed of the collector, subjected to a fine of $400 with
c^sts, and detained there, as I shall notice hereafter, until her voyage
^vras substantially broken up. I am confident Her Majesty's Govern-
Xnent will concur with me in the opinion that, as a question of inter-
national law, aside from treaty and other rights, the arrest and doten-
tion under the circumstances of Captain Liadry and of his vessel were

8. Mis. 162— VOL III 54 849

§38.] APPENDIX.

in violation of the law of nations as well as the law of huinauityf and
that on this ground alone the fine and the costs should berefindeiUnd
the parties suffering be indemnified for their losses thereby iicumd.

Mr. Bajard, Sec. of State, to Mr. Phelps, Nov. 6, iaS6. MSS. Inst., Gr. Brit.;
For. Rel., 1886.

"The Rebecca, an American schooner, cleared at Morgan Citji La,,
on the 30th January, 1884, with a cargo of lumber for Tampioo, Mexico,
and having also on board six cases of merchandise to be left on the way
at Brazos Santiago, Tex., and which were not on the manifest of tbe
cargo for Tampico. While on her voyage^ and off the bar at Brasos, a
storm arose, which increased in violence until the vessel, which was
then awaiting a favorable opportunity to enter the port of Brazw, was
driven a considerable distance to the southward, and so seriously dam-
aged by the storm that the captain, deeming it unsafe to attempt to
return to Brazos Santiago, made for the port of Tampico, which be
entered with his vessel, in a leaking and seriously disabled coBdition.

^* When the Bebecca began to leak at sea the six cases of merchandise
intended to be landed at Brazos Santiago, and which had been reached
by the water, were broken open, and the packages, thirty in uaniber,
contained in the cases, were so stored as to be protected from dama(;e by
the sea. On the arrival of the vessel at Tampico, the master immedi-
ately noted a protest of distress with the United States consul. On tbe
following day the Mexican customs officials seized the thirty packages
in question, which were not on the manifest of cargo for Tampico, on tbe
ground that they had been brought into port in violation of the Mexicaa
law requiring all goods entered in a Mexican port from a foreign coun-
try to be manifested, and arrested the master of the vessel on the charge
of attempting to smuggle. This charge was not sustained, and tbe
master was released ; but he was subsequently arrested and required
to give bond to answer the charge of bringing goods into a Mexieau
port without proper papers. In due time this charge was heard before
the district court for the south and center of Tamaulipas, sitting at
Tampico, and it was adjudged by the court that the goods shoald ^j
triple duty. The master refused to comply with this sentence, aud
thereupon the goods and vessel were sold by order of the court

^•This Department has taken the ground that as the Bebecca was
driven by stress of weather from her intended course and entered tbe
port of Tampico in distress, making no atti^mpt to conceal the anmani-
fested merchandise, and without any intention on the part of the master
or owners to violat.e the port regulations or tariff laws of Mexico, tbe
vessel was not liable to penal prosecution either for 'smuggling* or
ibr * bringing goods into port without proper papers;' and th.at tbe
seizure aud sale of the vessel, under the circumstances above stated^
was a gross breach of comity and hospitality i>eculiar]y unreasonable
and unjust.

850

MONROE DOCTRINE: HAYTI. [§61-

"The Mexieau Government, while denying that the entrance of the
Bebecca into Tampico was enforced by stress of weather, has taken the
position that the judgment of its courts, ordering the sale of the vessel,
is final and conclusive, especially as the master and owners failed to take
an appeal from the judgment so rendered to another court, as it is con-
tended might have been done.

'^This Department has contested and denied the 'doctrine that a Gov-
ernment may set up the judgment of one of its own courts as a bar to
in international claim, when such judgment is shown to have been nn-
ast or in violation of the principles of international law ; and has fur-
her maintained that, under the circumstances of the case and in view
f the fact that the prior proceedings had been so palpably arbitrary
nd unjust, the master and owners were not bound to attempt further
adicial remedies in the local tribunals."

Mr. Bayard, Sec. of State, report on Rebecca case, Feb. 2G, 1887. Sen. Ex. Doc.
109, 49th CoHg., 2d seas. See infra, $$ 233, 242.

§ 50c.

BOBBER RAIDERS.

See order of Secretary of War to General Sherman, June 1, 1877,
lirecting the United States commander in Texas '^ that in case the law-
ess incursions continue he will be at liberty, in the use of his own dis-
retion, when in pursuit of a band of the marnnders, • • • ' to fol-
ow them across the Bio Grande,'' &c.

House Ex. Doc. 13, 45 Cong., Ist seas.

* §61.
RELATIONS WITH HAYTI.

^'By the law of nations, it must be remembered, all sovereign states
re to be treated as equals. There is no distinction between strong
bates and weak ; the weak are to have iissigned to them the same ter-
itorial sanctities as the strong enjoy. There is a good reason for this.
Vere it not so, weak states would be the objects of rapine, which would
ot only disgrace civilization, but would destroy the security of the seas,
y breeding hordes of marauders and buccaneers, who would find their
[K)il in communities which have no adequate power of self-defense.
Liid there are peculiarly weighty reasons why the Government of the
Tnited States should lift a resolute hand to prevent such rapine and
poliation when attempted by persons carrying her flag, outcasts as
ley may be, and flung aside as that flag may be by them, whenever, as
1 the present case, this, may subserve their nefarious purposes. The
Tnited States has proclaimed herself the ptotector of this Western
Vorld, in which she is by far the strongest power, from the intrusion
f European sovereignties. She can point with proud satisfaction to
be fact that over and over again has she declared, and declared effect-
p'ely,that serious indeed would be the consequences if European hostile
iot should, without just cause, tread those states in the New World

%5\

§ 67.] APPENDIX.

which have emancipated themselves from European cofUtrol. Sbeha^
announced that she would cherish, as it becomes her, the territorial
rights of the feeblest of these states, regarding them not merely as in
the eye of the law equal to even the greatest of nationalities, but, ia
view of her distinctive policy, as entitled to be regarded by her as the
objects of a peculiarly gracious care. I feel bound to say that if we
should sanction by reprisals in Hayti the ruthless invasion of her terri-
tory and insult to her sovereignty which the facts now before as dis-
close, if we approve by solemn executive action and Oongressional as-
sent that invasion, it will be difficult for us her eafter to assert that in
the New World, of whose rights we are the peculiar guardiaos, these
rights have never been invaded by ourselves.^

Mr. Bayard, Seo. of State, report on Pelletier*8 case, Jaa. ^, ld37. Sen. El
Doc. 64, 49th Cong., 2d sess.

§67.
TEBBITORIAL BIGHTS IN CHINA.

^' I have received your No. 240 of the 1 2th of November last , toaching^
the projected revision of the municipal regulations and by-laws of
Shanghai, and offering certain pertinent points for the consideration of
the Department.

'*• It appears that by the municipal charter of Shangha i every foreigner
owning land of the value of at least 500 taels, or occapying a boose of
an assessed rental value of not less than 250 taels, is a member of what
is called the ^ municipal body,' and is entitled to vote at all mnnicip^l
elections. The < municipal body ' elect at stated times a mnu icipal oood*
cil, consisting of not more than nine members, who have the power to^
make regulations for the government of the municipality, subject tothe^
approval of the consuls and foreign ministers, or a majority of them,
and of the ratepayers at a special meeting.

" In the proposed revision it is insisted by the municipality, in respect
to any by-law that may hereafter be passed, that * any such additional
or substituted by-law, or alteration or repeal of a by-law, shall be bind-
ing when approved by the treaty consuls and the intendant of circoitt
or by a majority of them ; but the representatives of the treaty powers-
may, at any time within six months pf the date of 8uch approval, an-
nul any such additional or substituted by-law, or alteration or repeal nf
by-law.'

" Your opinion as to this proposed ordinance ia in entire accord wilb
that of the Department, that it would reverse the proper order of thin^<^
and be inexpedient ^o put in force, without the approval of the foreigB
ministers, a by-law which they might, in the exercise of an acknowl
edged power, subsequently disapprove and disallow. This woaW 1>«*
in fact the substitution of a power of annulment for the iK)wer of veti>
which the foreign ministers now possess.

" The question which you suggest as to the authority of the eonsnl-
general at Shanghai to enforce the ordinauceB of the monioipalit?'

&5^

CHINA : TERRITORIAL RIGHTS. [§ 67.

citizens of the XlDited States is not without difficulty. Under
i086 of the Bevised Statutes uf the United States, consuls of the
States in China are empowered to exercise criminal and civil
tion in conformity with the laws of the United States. It is pro-
lowever, that when those laws are not adapted to the object, or
cient in the provisions necessary to furnish, suitable remedies
mon law and the law of equity and admiralty shall be extended
srsons within the consul's jurisdiction ; and if neither the common
the law of equity or admiralty, nor the statutes of the United
furnish appropriate remedies the ministers in the countries, res.
y, to which the statute applies shall, by decrees and regulations
ball have the force of law, supply such defects and deficiencies,
last clause, iu respect to decrees and regulations, has been con-
y the Department to confer upon the ministers in question the
) regulate the course of procedure and the forms of judicial
) rather than any general legislative power for the definition of
and the imposition of penalties for their commission. It is true
inion has been divided on this point. Mr. Attorney-General
: held that the i)Ower given to the commissioner of the United
1 China to make < decrees and regulations' which should have
B of law gave him the power to legislate in certain respects for
of the United States in China, and ^to provide for many cases
inality which neither Federal statutes nor the common law
over.' (7 Op., 504, 505.) The disposition, however, of this De-
it has been to restrict the legislative power of the minister to
ilation of the forms and course of judicial procedure, it not being
i as desirable or proper to authorize the exercise of so great a
^hile it was so much in doubt, as that of criminal legislation,
the ordinances of the municipality of Shanghai, although de-
i for their operation as to citizens of the United States npon the
.1 of the minister of this Government in China, are conceived to
in one aspect a different question from that of the power of the
* of the United States as to criminal legislation. The munici-
f Shanghai is understood to have been organized by the volun-
ion of the foreign residents of certain nationalities, or such of
sidents as were owners or renters of land, for the purpose of
ig such local powers for the preservation of the order and morals
ommunity as are nsnally enjoyed by municipal bodies. In the
States, where government is reduced to a legal system, these
of local police rest on charters granted by the supreme legts-
ithority of the state ; but it is not difficult to conceive of a case
1 a community outside of any general system of law might of-
k government and adopt rules and regulations which would be
sed as valid on the ground of the right of self-preservation,
J inherent in people everywhere.

his light may be regarded the municipal ordinances of Shanghai,
jign settlement not being subject to the laws of Cbina, and the

§ 68a.]

APPENDIX.

legal systems of the respective foreign powers represented there bein^
not only dissimilar inter se^ bat insufficient to meet the local needs, it
became necessary for the local residents interested in the preservation
of peace and order to sapply the deficiency.

'^ American citizens residing in Shanghai enjoy, in common with other
persons composing the foreign settlement, all the rights, privileges, and
protection which the manicipal government affords ; and as they go
there volantarily, and presumptively for the advancement of their per-
sonal interests, they may reasonably be held to observe snch poUoe reg-
ulations as are not inconsistent with their rights under the laws of tbe
United States. It is true that this reasoning is not conclusive as tothd^
strict legal authority of the consul-general of the United States to en-
force such regulations; but, taken in connection with the fact that at
present American citizens in Shanghai are not subject to any jadicial
control except that of the consul-general of the United States, it affords
a basis upon which his enforcement of the municipal regulations may:
be justified.

^'It is important to observe that the jurisdiction of consuls of tbe-
United States in China is very extensive, including not only the admin-
istration of the laws of the United States, and the law of equity and
admiralty, but also of the common law. The consular courts have, there-
fore, what the courts of the United States generally have not — common-
law jurisdiction in criminal cases. It is true that this jurisdiction isdiffi-
cult, indeed incapable, of exact definition, but it implies the power ta
enforce rules which are not to be found on the statute-book of tbe
United States, and which can be ascertained only by the applicatioDof
the general principles of the common law to special cases and coodition.
In respect to matters of local police, a fair measure and definition of
the law may be found in the regulations adopted by the municipality in
aid of and supplementary to the general juridical systems of the foreign
powers. Such a process, while maintaining the peace and order of tbe
community, tends to consolidate the local administration of law.

>< The Department is, however, of opinion that all difficulties wonI<l
be removed if the treaty powers would adhere to the plan suggested in
your dispatch of organizing a municipal court to administer the regola-
tions of the municipal body. This course would be advantageous, both
to the municipality and to the treaty powers. It would relieve the con-
sular representatives of the latter Irom the performance of an embar-
rassing duty, and would secure a uniform and equal administration of
the municipal laws."

Mr. Bayard, Sec. of State, to Mr. Denby, Mar. 7, 1887. MSS. lQ8t.,ChtDA.

As to statutes of limitation in China, see infra^ $ 125.

As to limits of appeal from consular courts in China, see tn/ra, $ 125.

§68a.

EXTRATERRITORIALITY IN TURKEY.

«* Permit me to attract your attention to the relations of citizens of rte
United States as a nationality to the Ottoman Porte, in counectioD

^54

TURKEY: EXTRATERRITORIAL RIGHT«. [§ G8a.

lich two important qaestions present themselves for considera-
9 first being the position of citizens of the United States re-
ontinaoasly in Turkey for basiness or other purposes ; the sec-
3 x>osition in respect to the Porte, of educational, eleemosynary,
gious institutions established and carried on by citizens of the
States on Turkish soil.

!ar as concerns missionary statiiSj the question now immediately
ed is one which does not exclusively concern the schools of the
%n Board of Commissioners of Foreign Missions. Excellent aft
work, and entitled to the highest respect, I have simply to say
e efforts the Department is now making, and has heretofore
' made, in support of those schools is wholly divested of secta-
ferences, and would be exerted with equal earnestness in support
chools in Turkey of any other and all other American religious
table associations.

iewof the general question of the rights of citizens of the United
n Turkey, it is important to maintain that the rights of extra-
ality, claimed to a greater or less extent for these schools, are
;he same system by which rights of extraterritoriality are claimed
government in Turkey (1) for our citizens in certain juridical
s and, (2) for our diplomatic and consular establishments, so as
ie them to extend protection to the extent to which such pro.
is enjoyed by other Christian embassies, legations, and consul-
Turkey. The basis of this Jurisdiction may be thus stated :
stantinople, and the domain of which it is the capital, have, from
arly period down to the present day been populated by distinct
srse nationalities, to which rights of government by their own
laws have always been conceded. We have this thus conceded
the Greek empire) by Cassiodorus, the secretary of Theodorio
at: ^BomaniSj Bomanua judex erit; OothiSy Oothtis; etaub divev
dicum una justitia camplectabaturJ

en the Ottoman Porte was established by conquest in Turkey
e system of recognition and assignment of self-government to
itinct nationality was not only adopted but extended. Kot only
rmenians and other nationalities whom the Turks, after the con-
ound in their domains, recognized as entitled to a large measure
self-government, but similar privileges were from time to time
i to foreign Christian nations. For this course on the part of
te— a course which has led to the non-application to Turkey of
ciples of territorial sovereignty generally recognized elsewhere —
>wing reasons may be given :

en the Porte took possession of Turkey its population was
made up of Christian nationalities to which local self-govern-
i<d bieen previously more or less assigned. These nationalities
)t be expelled from Turkey without expelling the population by
s fields were tilled and its business exchanges conducted. On

855

§ 68a.]

APPENDIX.

• v.

* I

(

tbe other hand, the Porte could not undertake the municipal control of
«uch nationalities, nor the settlement of their business differences, nor
the supervision of their religious functions. • • • Those who re-
jected Mohammed were, to the Turk, not merely enemies, but Giaours—
unclean persons — persons with whom the Turk could have no basinessor
<;ven social relations. Hence they were to be excluded from Turkish ar-
mies. While they might be taxed for imperial puqioses, they were, so &r
.'18 concerns their own particular interests, to determine themselves tbe
taxes which they were to bear. In Turkish schools their children coald
uot be received; and, therefore, they were entitled to have schools
of their own, in which the teaching was to be distinctively Ghristiao,
and which were regarded as part of the system of diverse natioDality
recognized by ancient usage and essential to the existence of tbe Bin-
pire. And so it was with regard to the settlement of business disputes.
As the Porte, or its courts, whatever they might have been, conld uot,
without abandoning its fundamental doctrine of creed isolation, take
<50gnizance of business disputes between unbelievers, these disputes
must be settled by courts of the nationalities to which these unbelievers
respectively belonged. And if questions of religion were involved, such
disputes must be referred for determination to the head of the charch
to which the disputants belonged.

*' This demarcation of jurisdictions will uot appear strange when it
is recollected that a similar policy and practice are adopted in tbiscoao-
try by the dominant race toward the JS^orth American Indians. We can
scarcely rate the incapacity of these Indians to adopt and apply our
institutions as greatef than the Ottoman conquerors regarded the inca-
pacity of the Christian nationalities in Turkey at the conquest to adopt
and apply Ottoman institutions, nor regard the political capacity of
these Indians as of a less grade than the Ottoman conquerors regarded
that of their new Christian subjects. And we continue to do for tbe
Indians what the Ottoman conquerors of Turkey did for the Gbriittian
races who at the conquest were ibund there. Just as the Ottomans
professed themselves unable to understand the laws of those Cbristian
races, or to establish over them Moslem law, therefore leaving tbemto
their own courts, so we, declining to absorb Indian law into our own,
or even to apply to Indians our own municipal jurisprudence, leave tbe
adjudication of questions arising in Indian tribes to the determination
of their tribal law.

^^This renunciation by the Porte of legislative and judicial control
over Christian nationalities, which was worked into the traditions of
the Empire, acquired not only greater municipal force but more fally
recognized international validity, when the great European powers sent
to Turkey not only diplomatic and consular agents, but merchants, to
conduct business with the Christian subjects of the Porte, and mission-
aries to minister not only to persons of their own nationality bnt to

856

TURKEY: EXTRATERRITORIAL RIGHTS. [§ 68a.

Bvhomsoever might apply. These visitors could not be repelled. Tur-
key could uot afi'ord to quarrel with the leading sovereigns of civili-
nation, nor could she preclude that civilization from pouring, through
ts agents, into her domains. Those agents came aud remained in
^reat numbers; not merely merchants and capitalists, but religion-
jsts, devoted to the work of maintaining worship, according to their
iriews, with hospitals and schools. To these energetic and influential
settlers Turkish law, for the following reasons, was even less applicable
:han to the native Christians. The new-comers were protected by for-
eign powers whom Turkey was unwilling to offend ; and they belonged to
irVestern races who, from their idiosyncrasies, cannot be fused with the
Jrieutals. They are, to adopt Lord StowelPs language, frequently cited
¥ith approval in the United States (The Indian Chief, 3 C. Eob. Adm.
Kep., 2 )), ' immiscible,' so that by no comity of international law can the
nstltutions of the one be applied to the other. No foreigner with ordi-
lary business capacity or ordinary self-respect would live in a country
v^here he could not be heard in the local courts of justice, or, if he were
ieard,it would be as degraded by the disabilities of an inferior and abject
'ace. Yet, on the' other hand, the presence in Turkey of foreigners of
msiness capacity and of self-respect is essential to the maintenance of
he Empire. By them its monetary affairs are conducted, its soldiers
Irilled, its schools taught in all that concerns liberal civilization, and
ts relations with the outside world regulated. Turkey could not, and
lannot now, be expected to surrender the policy which, nominally at
east, treats the Ottomans as the dominant race on her soil ; and the
mlj alternative open to her has been, therefore, to permit foreigners of
he classes so necessary to her political prosperity to enjoy, as far as
)racticable when living within her borders, their own distinctive insti-
ations. The Porte could not exist if it were to surrender the political
ixclnsivism of Islamism. It could not exist, also, if it were deserted by
hose foreigners to whom its progress in civilization is due. Hence the
ocal self-government conceded to foreign communities in Turkey, evi-
lenced in the old capitulations and gradually extending to meet the ex-
genciesof the times, is a necessary emanation of the political and social
auditions of that Empire as they now exist. It is for the legation of
he United States at Constantinople to see that American citizens in
Curkey enjoy in their various relations the rights of extraterritoriality
irhich, under the system I have outlined, are among the essential condi-
ions of the continuous political existence of Turkey under its present
lynasty.

^^ The most imi)ortant of the prerogatives growing out of these con-
litions is that of the distinctive jurisdiction assigned to our minis-
ers in Turkey under treaty, and as applied by Revised Statutes, § 4125,
^hich gives these oflScers such jurisdiction as ' is permitted by the laws
if Turkey or ^ [in the alternative] Mts usages in its intercourse with
he Franks or other Christian nations.' By the same standard of usage,

So7

§ 68a.]

APPENDIX.

as evolved by the processes above stated, are to be determiued the ter-
ritorial rights exercised by our legations and consalates in tbe East,
and the prerogatives of American missionaries, nnder the limitations
above mentioned.

<' The effect of the treaty of 1830 on this extraterritoriality is thi»
stated by Mr. Cashing (7 Op., 567, 568): ^Commerce, in the treaty,
means any subject or object of residence or intercourse whatsoever * • •
as to all civil affairs to which no subject of Turkey is a party, AmericoMs
are wholly exempt from the local jurisdiction^ and^ • • • in dvU
matters as well as in criminal^ Americans in TurTcey are entitled to the
benefit of ' the usage observed towards other Franks.'

<^ ^ I think the ^^ causes" spoken of in the second sentence of the foarth
article are of the same nature as to parties as the ^litigations and dis-
putes" mentioned in the first sentence, that is, between citizens of the
United States and subjects of the Porte; the meaning of which is, that
causes between such parties under five hundred piastres in amount are
to be decided by the ordinary local magistrates, assisted by the dragoman,
and causes above that amount by the Porte itself; that is, the Saltan or
his appropriate minister, with intervention of the minister or consal of
the United States.

'^^My conclusions in this respect are founded, first, on the phrase in
the second article whibh engages that citizens of the United States in
Turkey shall not be ^^ treated in any way contrary to established usages.^
What are the *' established usages t" Undoubtedly the absolute ex-
emption of all Franks, in controversies among themselves, from the local
jurisdiction of the Porte.

*^ ^ I will not repeat here what has been said in previous communica-
tions as to the ground or principle of the right of extraterritoriality
asserted by, and fully conceded to, Franks generally, that is, Western
Christians in Turkey.'

^^One of the distinctive incidents of this extraterritoriality is thos^
noticed by Mr. Marcy in his note of September 26, 1853 (Dig. Int Law,
§ 198) :

"'By the laws of Turkey and other Eastern nations the consulates
therein may receive under their protection strangers and sojourners
whose religion and social manners do not assimilate with the religion
and manners of those countries. The persons thus received become
thereby invested with the nationality of the protecting consulate.
These consulates and other European establishments in the East are in
the constant habit of opening their doors for the reception of such in- «
mates, who are received irrespective of the country of iheir birth or
allegiance. It is not uncommon for them to have a very large uumlter
of Buch prot^gSs. International law recognizes and sanctions the ri^bts
acquiesced [sic acquired?] by this connection.

" ' In the law of nations, as to Europe, the rule is that men take tbeir
national character from the general character of the country iu whicli

858

TUBKEY: EXTRATEREITORIAL RIGHTS. [§ 68flr.

they redde ; and this role applies equally to America. Bat in Asia and
Africa an Immiscible character is kept np, and Europeans trading
under the protection of a factory take their national character from the
establishment under which they live and trade. This rule applies to
those parts of the world from obvious reasons of policy, because for-
eigners are not admitted there as in Europe and the Western parts of
the world, into the general body and mass of the society of the nation,,
but they continue strangers and sojourners, not acquiring any national
character under the general sovereignty of the country.' (1 Kent
Com., 78, 79.)

'' In a report to the Institute of International Law on this subject, by
M. F. de Martens (Annuaire, 18S2-'83, p. 225), is found the following
statement:

** < D'autrepart,les gouvernements musulmans eux-mgmes n'ont jamais
insists sur leur pou voir territorial pour jnger les proems mixtes entro
Bujets des Etats Chretiens. Les contestations entre giaours Staient
trop impures aux yeux des musulmans pour qu'nne intervention de leur
part ffit permise.'

^^ And in the same volume, page 231, M. J. Hornung says:

<< ^Gette exterritoriality des colonies europSennes et amSricaines trouve
sa justification dans les dSfauts de la justice et de la police locale et
dans le deplorable 6tat des prisous. Sou vent, en outre, les pays de
I'Orient sont encore, au point de vue religieux, dans leur droit et leur
justice, ce qui — soit dit pour leur defense — 6tait encore le cas, dans les
pays Chretiens, il y a cent ans on m^me moins. Ainsi, devant les tribu-
naux ottomans de Tempire turc, le tSmoignage des Chretiens n'est pas^
en fait, admis sur le m6me pied que celui des musulmans, le cheik-ul>
islam n'ayant pas encore donn6 son autorisation aux cadis.' (Voir le
rapport de Sir Travers Twiss dans le tome Y de PAnnuaire.)

*^ Concessions by the sovereigns of Constantinople and the region which
it dominates of extra territorial privileges were issued by the Christian
Emperors to Venice early in the eleventh century ; to the Amalfians in
1056; to the Genoese in 1098; to Pisa in 1110. The charters granting
these privileges were called ^capitulations,' from the fact that they were
divided into chapters ; and this title they continued to hold after the
Moslem conquest. When the Turks took possession of Constantinople,
after the conquest of 1453, they found the Genoese in possession, under
a specific capitulation, of the town of Galata, which was surrounded by
an intrenched camp. This capitulation was confirmed by Mahomet
when master of Constantinople. Capitulations to Venice, dated Octo-
ber 2, 1540, granted to Venetians the right of having all diflferencea
between Venetians in Turkey decided by judges to be appointed by
Venice, while to the trial before Turkish courts of differences between
Venetians and Turks, the presence of a Venetian interpreter was au es.
sential condition. In the same capitulations was given to Venice tho
right of having permanently at Constantinople a magistrate, as a sort

850

§ 68a.] APPENDIX.

of Venetian viceroy, by whom general supervision over Venetians iras
to be exercised. Venetians, by the same instrument, were exempted
not merely from military service, but from the tax to which other Cbria-
tians were subjected.

^^ The law in this respect is thus summed up by M. F. Laurent, in bis
Droit Civil International, vol. 1, page 239, as translated in this De-
partment:

^* *' The conquerors left to the conquered their law and a sort of auton-
omy ; the Greeks, Armenians, Slavs retained their religious and ciFil es-
tablishment as it existed at the epoch of the conquest; the Turks confine
themselves to ruling, and this rule consists merely In levying the tribnte
imposed on conquered populations ; they do not interfere with the ad-
ministration of justice. As is the case with the Turks, the civil law is
<;losely interwoven with the religions law, the conquerors left to the
vanquished, together with their religion, aquite extensive civil aatonomy,
clothing the heads of the various religious communities with an aathor-
ity analogous to the Sultan's. This system was extended to the Euro-
peans who settled in the ports of the Levant for commercial purposes.
In them the settlers are governed by their own laws } this autonomy is
^guaranteed them by the capitulations, a kind of convention made between
the Sultan and the foreigners represented by their Grovemment The
<uipitulations cannot be altered without the consent of the contracting
parties. Hence this peculiar consequence, that the laws respecting
foreigners and the rights assured to them only bind them when their
respective sovereign states have accepted them. It can scarcely be said
that the state is sovereign, for it does not proceed by the coarse of
ordering and commanding ; the relations between the Govern ment and
the foreigners are governed by international and not by municipal law.
It will certainly not be asserted that this peculiar e8tal3lishmeDt is dae
to a liberal disposition of mind or even to the tolerance of the con-
queror, for the latter may easily leave to the conquered and to foreigners
entire religious liberty without granting them an autonomy which de-
j atroys the very conception of the state. It is simply incapacity, oriental

I barbarism. It has been said of the Turks that they have camped in

1 Europe ; they rule over peoples who dwell side by side, among whom

\\ there is no bond of connection, and betweeu the conquerors and the

j <x>nquered there is no connecting link save that of force.' To the same

•effect writes Mr. W. B. Lawrence, Commentaire sur Wheaton, vol.4,pp*
106 ff.

'' To French subjects specific extraterritorial rights were given in the
<^apitnlations issued in February, 1535, or, according to Yon Hammer,
in February, 1536. (See De Testa's Traits de la Porte Ottomane, vol
1, pp. 15 ff.) These capitulations were from time to time renewed and
amplified, until they took the shape of the capitulations^ or ' Lettres
Pitentes' of May 30, 1740. De Testa, vol. 1, pp. 186, 187.) • • *

860

TUEKEY: EXTBATEBEITOKIAL EIGHTS. [§ 68a:

<' I have referred in detail to these capitulations, because tbey have
sometimes been put forvrard as the basis on which rests the right of our
missionaries in Turkey to the protection they claim. But, accepting
the view of Bfr. Pendleton King, by whom the missiou at Cotistanti^
nople has been recently ably conducted, I doubt the expediency of re-
lying solely on the capitulations for this purpose, since I think it may
be questioned whether under the text the ^ religieux,' to whom privi^
leges are given, are not to be limited to persons of French nationality. It
is not necessary, however, to thus limit ourselves. In the eighteenth*
article of the 'capitulations and articles of peace between Great i^ritaia
and the Ottoman Empire, as agreed upon, augmented, and altered at
different periods [beginning in 1675J,and finally confirmed by the treaty
of peace concluded at the Dardanelles in 1809,' as published by the Levant
Company, 1816 (1 Br. and For. St. Pap., 750), we have the following:

^'^XVIII. That all the capitulations, privileges, and articles granted^
to the French, Venetian, and other princes, who are in amity with the
Sublime Porte, having been in the like manner, through favor, granted
to the English, by virtue of our special command, the same shall be
always observed according to the form and tenor thereof, so that noooe-
in the future do presume to violate the same or act in* contra ventioo.
thereof.'

'<As illustrating the nature of the rights subsequently recognized as
residing not merely in Protestant missionaries in Turkey, but in their
converts, I inclose several important documents, marked Exhibit B.

<^ I also inclose a protocol of the conference which preceded the treaty^
of Paris of March 30, 1856, bearing on the same questions. This pro-
tocol is marked Exhibit G.
*'In the treaty of Paris referred to is the following article:
«<< Art. IX. His Imperial Majesty the Sultan having, in his constant
olicitude for the welfare of his subjects, issued a firman,, which while
ameliorating their condition without distinction of religioui or race,.
records his generous intentions towards the Christian populations ofi'
his Empire, and wishing to give a further proof of his sentiments in that
respect has resolved to communicate to the contracting parties tl^e said
firman emanating spontaneously from his sovereign will.

«<« The contracting x>ower8 recognize the high value of this communi>-
cation. It is clearly understood that it cannot, in any case, give to the
said powers the right to interfere, either collectively or separately, in
the relations of His Majesty the Saltan with his subjects, nor in the-
internal administration of his Empire.' (Holland's Eastern Question,.
246.)

*< The firman to which the ninth article, as given above, refers, is the
Hatti-HnmayouQ of February 18, 1866 ( JWd., 329, Jf.), which virtually
makes general the concessions of extra territoriality given in the capit-
ulations above cited.

861

4 68a.]

APPENDIX

if
. 1

M )

"Among the articles of the Treaty of Berlin, July 13, 1S78, are iht
followiug :

"'Art. LXL The Sublime Porte undertakes to carry out, without
further delay, the improvements and reforms demanded by local tt-
•qnirements in the provinces inhabited by the Armenians, and to gnar-
antee their security against the Circassians and Kurds.

"^It will periodically make known the steps taken to this effect to
the powers, who will superintend their application.

*'^Abt. LXIL The Sublime Porte, having expressed the intention to
maintain the principle of religious liberty, and give it the widest scope,
the contracting parties take notice of this spontaneous declaration.

"Mn no part of the Ottoman Empire shall difference of religion be
alleged against any person as a ground for exclusion or incapacity as
regards the discharge of civil and political rights, admission to the
public employments, functions, and honors, or the exercise of the varioos
professions and industries.

<^'A11 x>ersons shall be admitted, without distinction of religion, to
:give evidence before the tribunals.

^^*The freedom and outward exercise of all forms of worship are
assured to all, and no hindrance shall be offered either to the hier-
archical organizations of the various communions or to their relations
with their spiritual chiefs.

<'' Ecclesiastics, pilgrims, and monks of all nationalities traveling in
Turkey in Europe, or in Turkey in Asia, shall enjoy the same rights,
advantages, and privileges.

*''The right of official i>rotection by the diplomatic and consular
agents of the powers in Turkey is recognized both as reganls the above-
mentioned persons and their religious, charitable, and other establish-
ments in the hoi}* places and elsewhere.' (Holland's Eastern Qnes-
tion, 306.)

<^As an expositioQ of the effect of the articles above cited, I inclose,
marked Exhibit E, a translation made in this Department of a pas-
sage from an article by Mr. Ed. Engelhardt in the Bevue de droit inter-
national et legislation compar^e, vol. xii, p. 373.

^'This passage shows the construction assigned by the British Gov-
ernment, and accepted by Turkey, to the Treaty of Berlin, so far as con-
cerns the religions liberty of Protestants.

<< I have inclosed the above documents in this instruction becanse
<1) they indicate the basis on which rests the extraterritoriality in Tur-
key of our citizens both as to religious liberty and as to distinctive jn*
<licial organizations, and (2) these documents may not be readily ac-
cessible in Constantinople. From them you will see that there is no
necessity of basing the claim of American missionaries in Turkey on
the French capitulations. They are maintained far more effectively
under the treaties of Paris and of Berlin, under the Turkish decrees

SG2

turkey: extraterritorial rights. [§68a.

Licli preceded these treaties, and under tbo settled customs of the
orte.

" The construction given by Turkey to these treaties, and especially
» the capitulations to Great Britain quoted above, is evidenced by her
>utinaed protection of the American missions in Turkey, with their
capitals and schools, in which Turkish patients are received and Turk-
h children instructed. These missions have been in existence for
lany years. They have now connected with them six colleges, forty-
iree seminaries and high schools, attended by two thousand pupils,
jd five hundred primary and secondary schools with over ten thousand,
apils. Of these schools Mr. Hyde Clarke, in the Journal of the Brit-
h Statistical Society for December, 1867, page 526, thus speaks:

^^ ^ By the assistance of American funds and the devoted exertions of
le American missionaries, men and women, a great influence has been
certed in the Armenian body generally ; their services have not been
I much devoted to theological propagandism as to rendering service
I physicians, teachers, and social reformers.' In these institutions a
illion of dollars, sent from the United States, has been invested, and
oxn the United States their pecuniary support as well as most of tbeir
^achers are obtained. For more than half a century Turkey has seen
lese funds flow in, these schools built, these hospitals in beneficent
aeration, these children in process of instruction. ' During the sixty
3ars that American schools have existed in Turkey,' so it is stated in
1 official communication from the American Board of Commissioners of
oreign Missions, which has these missions in charge, ^ it (Turkey) has
ot only not interfered with or objected to them, but it has repeatedly
rotected them against unlawful aggression on the part of ill-disposed
arsons.'

*'The protection by Turkey of the schools established by other
^ligious communions on Turkish soil, a protection which has existed
*om a time coincident with the establishment of such schools, shows
liat Turkey regarded them as among the incidents of the territorial
ights assigned by the capitulations to' those religious communions.
Ve have, therefore, in this protection not merely a contemporabeous
onstruction of the Turkish capitulations, treaties, and edicts, but a
oustruction so continuous that it has the force of settled law. And
his construction is strengthened by the fact that the Porte has or-
lered that no duties should be charged on goods coming to the Amer-
can missions or schools. There could be no stronger proof that these
Qissions and schools are regarded by Turkey as having not merely a
protected but a favored existence on her soil.

^^ It has been argued by high authority that the right on the part of
American missionaries in Turkey to the continued maintenance of their
churches, hospitals, and schools may be rested on the 'favored-nation'
!lause of our treaty of 1862 with Turkey, applying to us privileges*
granted to other sovereignties. Turkey has claimed that this treaty

803

§ 68a.] APPENDIX.

has terminated b}* notice; and thongh tbere is little strength in thi»
contention, it is not necessary that the question shonld now be raised.
The rights of the missionaries above noticed find abundant support in
ancient usage and in the Turkish legislation prior and conseqaent to
the treaties of Paris and Berlin, applied, as this legislation has been, in
such a way as to grant what are virtually charters to the missions in
question for their hospitals and schools.

<^ From what has been said it will be seen, therefore, that the right
of Protestant citizens of the United States to conduct their missions^
chapels, hospitals, and schools in Turkey in the way they have been
heretofore conducted, rests on the pritileges of extraterritoriality
granted to Christian foreigners in Turkey, as expanded in the present
case by usage established by Turkey, so as to enable persons of Turk-
ish nationality to be received in such hospitals and schools.

<< So far as concerns the right of Americans, whatever may be their re-
ligious faith, to protection in the exercise of that faith, the right rests-
on the concessions of extraterritorialty above stated. So far as it con-
cerns their right to receive in their hospitals and schools (otherwise
than as servants) persons of Turkish nationality, it rests on usage,
amounting, from duration and the incidents assigned to it by law, to
a charter. It is not, however, claimed that as to such persons of Tark-
ish nationality extraterritorial rights in American missions can he ac-
quired. They must remain subject to the sovereignty of the Porte,
which is entitled to prescribe the terms on which they can be permi^
ted to attend such missions. It is, therefore, with peculiar satisfaction
that the Department learns that, in part through the instrumentality
of Mr. Pendleton King, as charg6 d'affaires, an arrangement has been
effected with the Turkish authorities by which the missions are enablnl
to pursue, as heretofore, their meritorious, unselfish, and beneficent
work among Turks in Turkey.

^\I inclose herewith, as a matter of information, an opinion by Mr.
Edwin Pears, lately forwarded to this Department by American citizens
residing in Constantinople, as to their legal rights. Mr. Pears is well
kno^u as president of the European bar at Constantinople, and as an
accomplished lawyer and historian."

Mr. Bayard, Sec. of Stat«, to Mr. Strans, Apr. 20, 1887. MS8. Inst., Turkey.

EXHIBIT E.

(The other exhibits attached to the above instructions are sufficientlj
noted in the text.) ■

The following is a translation made in this Department of a passa^
from aiA article by Mr. Ed. Engelhardt in the BeviTe de droit interoa-
tioual et legislation compar^e, vol. xii, p. 373:

** It remained for the Congress of Berlin to strike the most effective blow st tb»
Porte's untonomy respecting religions government. By article62of the treaty ofH^J

8G4

TURKEY: EXTEATERRITORIAL RIGHTS. [§ 68a.

878, the Tarkish Qoverumout not ouly recognized the existence in the foreign
>miitiu and consular officers of a right of official protection over the ecclesiastics,
'ims, and monks of their nationality, and over their establishments; it bound
I generally to maintain the principle of religious liberty, thus rendering itself lia-
0 a control from which its own Mahometan establishment could not escape.
The sequence of the steps is clear; foreign interveutiou was first limited to the
places, to the priests officiating in them, and to foreign visitors. It afterwarda
ids to the other foreign persons in holy orders, both of the Prankish or Catholic
ion, and of the Greek faith ; next comes the Ottoman Christians, the patronage
lom, unjustly contended for by Russia,* has devolved upon the great powers ;
r, the Mussulman religion itself is threatened in its ancient and Jealous indepen-
).

lie autonomy of Mam, regarded solely from the religious point of view, had al-
' been impaired at the time of the discussion of the fourth paragraph of the pre-
aries of peace in 1856. The four deliberating powers, England particularly, had
ited the interest they felt in the suppression of the Mahometan law which pun-
apoetasyand public blasphemy by death, representing that inasmuch as Turkey
.bout to form part of the European concert, it was impossible to acquiesce in the
xmanoe of a rule which was of the character of an insult to every civilized na-

^oreover, during the years 18.56 and 1857 the British embassy had more than once
tUy interceded in behalf of Mussulmen who had been converted or were about to
iverted, and whom the local authorities were prosecuting as criminals, and long
natic correspondence had been exchanged on this delicate point of foreign inter-

9n.t

fter the Treaty of Berlin, so delicate a treatment was not deemed necessary, and
ye was the spectator of an incident which in certain respects recalled the ad-
ire of which Prince Mentchikoff was the hero in 1853. Towards the close of the
L879 the Turkish police arrested a mollah who had assisted an Anglican mis-
ry in translating Christian works hostile to the Mahometan faith. In the eyes
) followers of Islam a more culpable act would not be conceived or one more
s than that of a priest of the national religion lending his personal assistance to
k of propagandism directed against that religion.

imet Tewfik Effendi was therefore condemned as proven guilty of a crime de-
by the law of the land.

he English embassador, whose intervention in this case had been asked by the
of the London Church Missionary Society, did not content himself with iuter-
g in behalf of his fellow-subject, who had himself been put under examination
rrest ; he demanded of the Porte the immediate release of the ulema as well as
imuuity from all punishment, alleging the liberty of conscience which the Sul-
lad promised their subjects, and the religious liberty embodied in article &2 of
reaty of Berlin." (Note of Sir H. Layard to the Porte, dated December 24, 1879. )
he ultimatum of Sir H. Layard was successfully supported by the representa-
of Germany, Austria- Hungary, and Italy.

; would scarcely be possible to show more clearly that to the 'abdication of judi-
mctions a result of the first capitulations had succeeded in Turkey a second and
ss grave abdication, that of absolute autonomy in religious matters. '^

:cording to an interpretation based upon contemporary facts the clause of the

' of Kutchuk-Kainaidji, by which the Porte promised to protect the Christian

)u, only applied to the Christian provinces of the Danube and of the Vrchipelago

I Russia had occupied and which she restored to the Sultan.

^patches from the British Embassy, 4th, 18th, and 26th Feb., 5th Mar.,

Lpr., 30th May, 1856.

spatches from British embassy, 23 Sept., 1856, 26 Nov., 1857, 14 Aug.. 18(1(1.

S. Mis. 162— VOL m 56 865

§91.1

t
t .

ill
I

APPENDIX.

5 91.
REOEPTION OF BEFUaEES.

" Philadelphia, November 23, 1795.

" My Deab Sir: Inclosed are letters for Mr. de la Payette and his
tutor. I leave them open for your perusal ; and notwithstandiDg the
request iu my letter of the 18th, I shall cheerfully acquiesce in any
measures respecting them which you (and others with whom you may
be disposed to consult) may deem more eligible.

"As there can be no doubt that the feelings of both are alive to
everything which may have the semblance of neglect or slight, and. in-
deed, expectant as they must have been (without adverting perhapsto
the impediments) of an invitation to fly to me without delay, and dis-
tressing and forlorn as the situation of one of them is, it is necessary
that every assurance and consolation should be administered to them.
For these reasons I pray you to send my letters to them by express, tie
expense of which I will defray with thankfulness.

"The doubt which you have expressed of the propriety of an open
and avowed conduct in me towards the son of Mr. de la Fayette, and
the subject it might afford to malignancy to misinterpret the cause, has
so much weight that I am distrustful of my own judgment in deciding
^ I on this business lest my feelings should carry me further | thauj prudence

4 i (while I am a public character) will warrant. It has, however, like

many other things in which I have been involved, two edges, neither
i of which can be avoided without falling on the other. On one side, 1

may be charged with countenancing those who have been denounced
the enemies of France 5 on the other, with not countenancing the son of
a man who is dear to America.

"When I wrote to you lastl had resolved to take both the pupil and
tutor into my own family, supposing it would be most agreeable to the
young gentleman, and congenial with friendship — at the same time that
it would have given me more command over him — been more conven-
ient and less expensive to myself than to board them out. But now,
as I have intimated before, 1 confide the matter entirely to your decis-
ion, after seeing and conversing with them.

"Mr. Adet has been indirectly sounded on the coming over of the
§ family of Fayette generally, but not on the exact point. His answer was,

that as France did not make war upon women and children he did not
suppose that their emigration could excite any notice. The case, how*
ever, might be different, if one of them (with his tutor, whose character,
conduct, and principles may, for aught I know to the contrary, be very
obnoxious) was brought into my family, and, of course, into the com-
pany that visited it. But as all these things will be taken into consid-
|{^ eration by you I shall not dwell upon them, and only add that

"With esteem, regard, and sincere affection, I am ever yours,

• "Cr. Washington.

" P. fc>. — 1 have no doubt but that young Fayette and his tutor mighj
be boarded at Germantown, or in the vicinity of this city, and voaW
be at hand to receive assistance and advice as occasion might reqaii*
although he might not be a resident under my roof.

" Colonel Hamilton."

4 Hamilton MSS., Dept. of State. See also Washington to Hamiltoo, iUy ^N
^ . 1794, 10 Washington's Writings, 411.

866

DIPLOMATIC ACTION. [§§ 98, 102, 106.

§98.
DIPLOMATIC PRIVILEGE FROM TESTIFYING.

^'Athoagh fully aware of the immunity from judicial citation which
ertains to your position as the envoy of a foreign Government, yet, inas-
luch as our constitutional procedure requires that a person accused of
rime shall be confronted with the witnesses against him, and as your-
3lf and the members of your household are best qualified to give the
ndence necessary to prevent a possible miscarriage of justice, I may
e i)ermitted to express the hope that you will courteously offer your
id toward the vindication of the laws in this case."

Mr. Porter. Acting Sec. of State, to Mr. Gana ; Jan. 3, 18S7. MSS. Notes, Chili.

§ 102.
JOINT ACTION OF DIPLOMATISTS.

"The policy of this Government is distinctly opposed to joint action
ith other powers in the presentation of claims, even when they may
rise from an act equally invading the common rights of American citi.
ens and the subjects of another state residing in the country to whose
'Ovemment complaint is made. While this Government is ready to
?cure any advantage which may be derived from a coincident, and
'en identical representation wit\i other powers whose cause of com-
aiut may be common with our own, it is averse to joint presentation,
the terra is strictly understood. A sufficient reason for this is found
the consideration that a truly joint demand for redress in a given
se might invok^e a joint enforcement of whatever remedy might be-
oie imperative in the event of denial ; and this Government is indis-
Hed to contemplate such entanglement of its duties and interests with
ose of another power."

Mr. Bayard, Sec. of State, to Mr. Scott, Oct. 14, 1886. MSS. In8t.,yenez.

§106.

RECALL OF DIPLOMATIC AGENTS.

Much difficulty was experienced, at the time of the preparation of the
8t edition of this work, in the collection of the facts necessary to ex-
iin the relations of the Government to the Marquis of Casa Yrujo in
04-1807. (See vol. 1, § 106, p. 698.) In view of the fact that portions
the diplomatic correspondence of that period had been destroyed at
e sacking of Washington in 1814, 1 applied to Mr. Curry, minister of
e United States at Madrid, for any supplementary information he
iild obtain in resx)ect to the Marquis de Yrujo from the archives of our
nation at Madrid. In rei>ly he very kindly furnished me with the fol-
yiug document, which api)ears to be a copy of statements made in
is relation to the Spanish Goveriiinont by Mr. G. W. Erving, when

867

§ 106.] APPENDIX.

minister at Madrid. I ought further to say thnt an examination of Mr.
Erving's communications to this Government during bis mission in Spaia
has impressed me with a conviction that to his sagacity' and good sense
our settlement in 1822 with Spain was largely due.

" Case of the Marquis de Casa Trujo, envoy extraordinary and minister
plenipotentiary of His Catholic Majesty to the United States.

" The deviation of this minister from the line of conduct prescribdl
by his diplomatic station near the Government of the United States^
may be traced as far back as the month of February, 1804. In a let-
ter of that date to the Department of State he undertook to require
from the Government a prohibition of all tra<le by the citizens of the
United States with the Island of St. Domingo, a colony under the do-
minion of a third power, and endeavored to enforce the demand by
suggesting that it would be backed by the principal nations of Enrope.
It is true that he disclaimed this import of his suggestion ; but liisei
planation, if it had done less violence to his expressions, could not res
cue him from the just charge of referring to the presumed views of
those nations with the manifest and offensive desire of awing tbe
councils of the United States.

^^ The correspondence on that occasion must have become known to
the Spanish Government, which ought to have seen in it, moreover, a
style and a tone very different from what it would expect from tbe min-
isters of other nations residing at Madrid.

" It was not long before another occasion was seized by the Marqois
de Yrujo for developing the intemperance of his character.

'' The situation of the southern frontier of the United States, fixed by
the treaty of 1796 with Spain, had for sometime required an extension
to that quarter of certain revenue provisions existing in every other.
During the session of 1804 this extension was made by an act of Congress^
and it was so framed as to be applicable to the event of an exi)ected
adjustment of the controversy relating to the territory between the
Mississippi and the river Perdido which would put the United States
in actual possession of the entire river Mobile. This was the construc-
tion put on that part of the act by the executive authority, the consti-
tutional expositor of it, and the construction in which thehvw bas beew
actually carried into operation.

''The Marquis de Yrujo, without waiting for any evidence whatever
of the meaning which would be officially and practically applieil to the
terms and phrases used in the act, without even previously asking tor
explanations on this subject, gave way to the vehemence of bis temper^
first in his verbal remonstrances against the act, and afterwards in his
letter of March 7, 1804, in which he substitutes a positive meaning for
the provirional meaning; and on this unwarrantable construction pro-
ceeds to arraign the act of Congress in terms which ought never to stain
a diplomatic paper. After acknowledging that he had ascertaine«l the
printed act to be authentic, he calls it ^an atrocious libel,' an insulting
usurpation of the unquestionable rights of his sovereign, *a direct con
tradiction of the assurances given by the President.'

" It was reasonably supposed that the Spanisii Government, with such
a specimen of the character of its minister in its hands, would lose not
a moment in making him feel the marks of its displeasure, wbicb were
so clearly prescribed as well by its respect for itself as by that which
was due to the United States. In this confidence, no recall of him was^
expressly desired, and from an unwillingness to interrupt the ordinary

868

YKUJO'S CASE. [§ 106.

<5ouimaDicatiou between the two Governments that channel of it was
permitted to remain unclosed.

•*Thi8 moderation on the part of the American Grovernment was not,
however, followed by any steps on that of His Catholic Majesty ex-
pressive of corresponding sentiments, and it was not very long before
the Marquis de Yrnjo, encouraged doubtless by the impunity he had ex-
perienced from his own Government, and calculating on the patience of
tUat of the United States, took a course which put their patience to a
Uti\r trial.

*'lnstea<l of confining himself to a communication with theGovern-
^cut in all cases where he had information to give or representations
or remonstrances to make, according to the established and essential
Tules of exercising the diplomatic trust, he addressed himself, in the
inonth of September, 1804, to the editor of a gazette in Philadelphia,
inth the avowed purpose of engaging bim, by a pecuniary recom-
pense, to make his press inatrumcDtal in combating the supposed meas-
ures and views of this Government and in gaining over the people here
to those of his own. This charge does not rpt merely, as has been al-
leged, on the declaration of the editor, which included many aggravating
particulars, and was made under the solemnity of an oath, but is rati-
fied by the express and ofQcial avowals of the marquis himself. It may
be added that the attempt to seduce the editor was, contrary to the as-
sertion of this minister, in direct violation of an act of Congress, pro-
hibiting under adequate penalties any correspondence or intercourse of
citizens of the United States with any foreign Government or its agents
in relation to any dispute or controversies with the United States, with
intent to infiuence the measures or conduct of such foreign Govern-
ment or its oflBcers, or defeat the measures of the Government of the
United States.

'' Instead, again, of offering apologies, or even a modest silence, for so
flagrant an aberration, he made it the subject of a letter to the Depart-
ment of State, in which he avows the fact charged, denies the impro-
priety of it, even in the latitude of the aflBdavit made by the editor, and
asserts a right, as the public minister of His Catholic Majesty, in com-
mon with the citizens and under the Constitution of the country, to em-
ploy the press in vindicating and advancing the objects of his Govern-
ment and in turning the opinion of the people against their own.

''This is the first instance, without doubt, in which such a doctrine
ever made its appearance, and it is not less notable for its extravagance
than for its novelty. To claim, in the same breath, all the rights of a
citizen, and all the immunities of a public minister, to speak of rights
under the Constitution of the country, as belonging to a foreign
minister who disclaims every species of allegiance except to his own
sovereign, to put himself on a level with private citizens in the free use
of the press, and to put himself above even the Government, by holding
himself as responsible for his abuses of that freedom to a ioreign Gov-
ernment only — these are inconsistencies which overwhelm the preten-
sion from which they flow, a pretension which, as it has its origin, will
probably have its end, with the case in which it is advanced.

'•What, in fact, would be the state of things if in a Government where
the press is free so extravagant a pretension were admitted and ex-
ercised ; if to all the privileges and means already indulged to i)ublic
ministers by usage and the law of nations, were to be added the free
use of the press under the municipal laws for the purpose of employ-
ing, in that most operative of all modes in a Government like that of

800

§ 106.] APPENDIX.

the United States, the treasures of a foreign prince and the intrigneg
of a foreign minister, in poisoning the public opinion, in biassing the
elections, and in turning both against the interests and Government
of the country f

*'To show that this pretension is not unjustly ascribed to the Marquis
de Yrujo, it is stated in his own words, as follows : * Under such circnm-
stances I believed then, and I believe noiCj it was not only my right but
also 7ny duty to check the torrent of impressions as contrary to truth as
to the interest of my country, being very well acquainted with the great
influence of public opinion in a popular Government as that ot the
United States; with a just intention of bringing the subjects of discus-
sion under a forcible point of view which had l^en carefully concealed,
and presenting them to the public eye under new aspects; and, appre-
hending that the editors who had previously espoused a party od the
question would refuse to insert in their papers my intended publication,
1 thought that Mr. Jackson, among others, would not perhaps have the
reluctance which I anticipated in the former.' (This letter was written
in English.)

^' Not satisfied with addressing to the Government this cnrioas at-
tempt to justify his transaction with the editor, he had the temerity to
carry his doctrine into practice by causing the letter to be printed in a
newspaper, and such was the eagerness in taking this step that the
letter appeared in print before it was delivered at the office of the Sec-
ret a ry of State.

'* Who could doubt that the Spanish Government would be duly
struck with such an outrage on decorum, and such an open contempt
for all the restraints imposed by the law of nations on foreign ministers,
who have far more than a balance for these restraints in the privileges
with which the same law endows themf The Grovemment of the
United States could certainly no longer forbear a formal representation
to the Spanish Government of the insuperable objection to such a dip-
lomatic organ, and to let it be clei^rly understood that the recall of its
minister was expected. Instructions to this effect were accordingly for-
warded to the American ministers extraordinary then at Madrid, and
in pursuance of those instructions, the requested recall, with the grounds
of the request was, on the 13th of April, 1805, formally addressed to the
Spanish Government.

" In answer to this letter the minister informed them, on the ICth of
the same month, by command of the King, that as the marquis had
obtained his royal permission to return to Spain ' at the season which
would be convenieni for making a passage with the most probable
safety,' the desired removal of the marquis would, in that mode, be ac-
complished, and a hope was expressed that the Government of the
United States would consider that as a proper mode for reconciling
its object, with the respect due to the minister pleni[>otentiary of His
Majesty.

" To this communication the American ministers, reciting the per-
mission given for the return of the marquis, 'in the course ofthe^ei^
favorahle season^ and the wish of His Catholic Majesty that this mode
might be satisfactory,' expressed in reply their confidence that the re-
spect entertained by the United States for His Catholic Majesty woalp
induce their Government to be satisfied with the mode of fulfilhugtheii
object most agreeable to him.

^^ The President acquiesced in the proposed removal of the marqois by
a permitted return, instead of a recall, and on the receipt of the com

870

YRUJO'S CASE. [§ 106.

moDication from the minister of the United States at Madrid justly
expected that the effect of the instructions from the Spanish Govern-
ment to their minister, which ought not to be much longer on the way
than the communication of those ministers, would speedily appear in
the presentation by the Spanish minister of his letters of recall. Whilst
presumable casualties could in any measure explain the delay, it was
allowed to have as little effect as possible either on the estimate of the
dispositions of the Spanish Government or on the intercourse with its
representative. This explanation, however, vanishing gradually with
the lapse of time, was at length prescribed altogether by satisfactory
evidence that the marquis had received, at different times, communi-
cations from his Government of dates subsequent to the engagement
that his return should take place by permission, for which return the
most favorable season of the year might have been found between the
arrival of instructions, if duly given, and the winter months. It was
under these circumstances, and after a lapse of many months, that it
was learned, with no little surprise, that the marquis, instead of leaving
the United States, had formed the purpose of taking his station at
Washington, as usual, on the meeting of the legislature, the time for
which was approaching. Such a purpose would certainly have justified
a course which a Government less temperate in its character than that
of the United States would have rigorously pursued. In adherence
nevertheless to its principles of moderation, and to the policy of rather
preventing than redressing obnoxious occurrences, measures* of rigor
were not only forborne, but a friendly and informal intimation was
allowed to b6 given to the marquis that under existing circumstances
prudence and delicacy equally recommended a change of his intention.

'' The intimation was disregarded, and at the end of the eighth month
from the period at which his leaving the United States was promised
he arrived at the city of Washington. Those who take into view the
more rigorous modes of proceeding which the law of nations, as carried
into practice by some of the most respectable of them, would have author-
ized, will find in that adopted by the Government of the United States
a fresh example of its disinclination to depart from the most lenient
course reconciliable, in any manner, with the attention indispensably due
to the rights and to the honor of the nation. In this spirit the follow-
ing letter was written to the marquis, bearing date the 15th of Janu-
ary, 1806:

" * In consequence of the just objections which your conduct had fur-
nished against your continuance here as the organ of communication
on the part of His Catholic Majesty, it was signifiei\ at Madrid, in the
month of April last, through the mission of the United States there,
that the substitution of another was desired by the President. In reply
it was intimated by Mr. Ceballos that as you had yourself expressed
a wish and obtained permission to return to Spain, the purpose might be
accomplished without the necessity of a recall, and that such a change
in the mode would be agreeable to your Government. In a spirit of
conciliation the arrangement proposed by Mr. Ceballos was admitted ;
and it was not doubted that it would without delay have been car-
iuto effect. It is seen, therefore, not without surprise, that at this late
day you should have repaired to the seat of Government, as if nothing
had occurred rendering such a step improper. Under these circum-
stances the President has charged me to signify to you that your remain-
ing at this place is dissatisfactory to him, and that although he cannot
permit himself to insist on your departure from the United States

871

§106.] APPENDIX.

daring an inclement season he expects it will not be unnecessarily
postponed after this obstacle shall have ceased.

" ' I am charged by the President at the same time to be folly under-
stood that the considerations which have led to this explanation being
altogether persona^ they are i)erfectly consistent with the ready ad-
mission of a successor, and with all the attention which can be dae to
whatever communications His Gatholia Majesty may plea^ to make
with a view to maintain and cultivate harmony and friendship between
the two nations.

" 'I have the honor to be, &c.,

*' * (Signed) James Madison.'

" Tiiis letter was answered on the succeeding day by one in which he
X)retixes to some very unsound remarks, in terms not always the most
delicate, on his transactions with the Philadelphia editor, and on the
letter of tbe American minister, requiring his recall, a declaration in
these words: 'As I have not come to form plots, to excite conspiracies,
or to promote any attempts against the Government of the United
States, and as, to this hour, I have not directly or indirectly committed
acts of that tendency, which alone could justify the tenor and object o(
your letter, to which I now reply, it results that my coming was an act
innocent, legal, and which leaves me in possession of all my rights and
privileges both as a public man and a private individual. Making nse
of these*! intend to remain in the city of four miles square, in which
the Government resides, as long as may suit the interests of the King,
my master, and my own personal convenience; adding, as I ought to do,
that I shall not lose sight of these two considerations, in relation to
the time and the season of fulfilling our mutual wishes for my departure
from tbe United States.'

"Tbe letter from which this passage was extracted was followed by
anotluM- of January 19, which is given entire:

[Translation.]

*' * SiE : Disembarrassed from tbe personal explanations into which for
just reasons I found myself obliged to ent>er in my first answer to your
letter of the 15th current, I must now inform you of what would other-
wise have then constituted my sole reply, viz : That the envoy extra-
ordinary and minister plenipotentiary of His Catholic Majesty to the
United States receives no orders but from his sovereign. In like man-
ner I ought to declare to you that I consider the style and tenor of
your letter as contrary to decorum, and its object as an infraction of
the privileges given to me by my character. This infraction of the
diplomatic rights, as inexplicable as unsupported, requires fipom me
tbe most solemn protest against your said letter, its style, and the in-
tent with which it was addressed to me. I protest, therefore, in the
most solemn manner in which it is possible for me to do it, a^inst
this step, as contrary, under existing circumstances, to the diplomatic
laws and customs, as it is to the spirit of the Constitution and Govern-
ment of the country ; and in order that your conduct in this case may
not affect in any manner the privileges of the corps to which 1 have
tbe honor to belong, I shall immediately transmit to the other mem-
bers of it accredited to tbe United States a copy of your said letter, oi
my flrst answer, and of this my protest, in order that it may forever
appear that if there has existed on the part of this administration an
arbitrary determination to violate tbe rights of embassy, respected by

872

YKUJO'S CASE. [§106.

uncivilised nations, there has likewise existed in methejast resola-
tiiou of repelling such an attempt.

"*God preserve you many years.

"< Washington, 19 January, &c.

"* (Signed) The Makquis of Oasa Yeujo.

"*Mr. James Madison.'

*' These letters speak for themselves. With the sole exception of
c»ses where a foreign minister may be engaged in plots, conspiracies,
or attempts on the Government itself, they assert a right in him, under
the law of nations, and what is more, under the municipal constitution,
to go where he pleases, to stay as long as he pleases, and to commit
every other species of offense he pleases, without being removable or
controllable by the Government of the country, or in the least respon-
sible to any other authority than that of his own sovereign.

*' May then a foreign minister, when once received, offer with impunity
to the Government receiving him every offensp> short of the specified
crimes against the state! May he trample on all the rules of decorum
observed in public as well as in private intercourse! May he tamper
Tdth the virtue and fidelity of the citizens ; may he corrupt the press
for the purpose of public or private defamation ; may he give ostenta-
tions defiances to the Government; may he insult the Chief Magistrate
by insolent letters charging him with dishonorable conduct, and by the
publication of them arraign him before the community; may he even
insult him to his face, by his looks, his language, and his deportment;
may he commit, and go on committing, these and a thousand other
enormities not falling within the specified cases, ard find in his diplo-
matic badge a consecrated shield against every restraint, until his case
shall have been transmitted to his own Government, and it'shall please
that to rescue the insulted Government from the presence and provoca-
tion of such a functionary f

" Common sense revolts at such pretensions; every Government which
respects itself will feel its right, whenever a foreign functionary shall
presume to carry them into practice, to banish him instantly from its
presence, to strip him of his immunities, or to order him out of the
country, according to the degree of provocation given. This right,
inherent in all Governments, derives additional energy in the case of
the United States, not only from peculiarities in their political principles
and institutions, which would widen the range for indignities not on
the short list of crime against the state, but esi)ecially from the dis
tance of the Governments whose representatives might so offend, and
the lengthened periods of liability to such indignities, if no right ex-
isted on the spot to x^ut an end to them.

''After the moderate exercise of thi:^ incontestable right in the letter
signifying to the Marquis de Yrujo tbat his i)resence at the seat of Gov-
ernment was dissatisfactory, the provocation superadded by the style
and matter of his answer would have justified a procedure against him
much more expressive of the sentiment they were calculated to inspire.
This sentiment, however, was not otherwise manifested than by a silent
consignment of him to tbe mortification of his own reflections.

** These reflections had not the effect which they ought to have had.
On tbe contrary, pressing forward in his intemperate career, he not only
executed his purpose of communicating to the other public ministers
at Washington the correspondence whicb had just taken place with
the Department of State, but caused that correspondence, with his letter

873

^ 106.] APPENDIX.

to those miDisters, to be pnblisbed in tlie Gazette as aDotlier uppal to
the people against tbeirUfaief Magistrate. Sotami1inr,in(]4^l,h^i<]tbu
resort become to hia mind that nearly aboat the same time he addrfsgd
to the public, througli the press aod with the same view, an official
letter which he had written to the Depai-tmentof State cxi[DmeDtiDg,iD
a style which might have been more respectfnl without being less
adapted to its object, on certain passages in a message of the President
to the legislative body.

" Bat although no immediate notice, beyond that of the letter of
January 15 was taken of the Marquis de Yrujo, notwithstandiug tbe
coiitiuaance for two weeks thereafter within the city of "Washingtoa,
it was a matter of course to communicate to bis Government these
aggravated provocations, with the proof they afforded of the protracleil
forbearance of the Government of the United States. The printed oopirt
of all the documents, with the facts attached to them,of hishaviDgcinutd
them to be thus published, were accordingly transmitted to the diplo-
matic agent of the United States at Madrid, with an instruction to laf
the whole before the Spanish Government without a single comment.

" On the 6th of May last the commnnicatlon was so made, wHb an
effect, however, very different from what was expected. Instead of le-
pairing the wrongs of the Spanish representative agaiust the United
States by expressions of regret, and by withdrawing the aatlior of
tbem, Mr. Cevallos, in his answer to the communication, vindicated the
Marquis de Yrujo throughout, adopts bis pretensions and his fiillacioQS
arguments; copies often his very words, and descends so far as to re-
peat observations which, as they x'ould have been passed over in sileace
in au answer to the marquis, if his title to one had not been forfeited,
must excite the greater surprise at their escaping the i>eu of Bis Catliolic
Majesty's first secretary of state.

"The letter of Mr. Cevallos does not scruple to mingle with these ex-
traordinary contents a complaint not less extraordinary, that the eom-
mnnication made on the <>th of May, without an explanation of the
reasons which supported it, was a disrespectful mode of addressinj; the
Spanish Government on the subject.

"But what explanatiou could be deemed necessary in a case 'fhiuh
explained itself in every particular; which carried on the face of it pre-
tensions without example in diplomatic history, addressed to the Gov-
ernment in terms at whiuh every Government ought to takeoffens*!
and the proof that these pretensions had been actually exercised in a
printed appeal to the i>eople of the United States against their own con-
stituted authorities. This silence was in fact so far from being dictated
by want of respect for His Catholic Majesty that it was preferred u at
once the most delicate and emphatic manifestation of the charges MguiiK
bis minister, and of the coufidence placed in bis readiness to do justice
to a friendly power who might reasonably have declined awaitiugw
distant an interposition.

" Proceeding himself in the very footsteps of tbe Marquis de Ymjoi
which this minister ought to have been made to trea*l back, Mr, Coval-
los contends that the letter of January 15, signifying the dissatl-'^faetioii
of the President at tbe repairing of the marquis to Washington, f^s*
marked violation of the sacred rights of embassy; that sucli a step
would be justified Moiety by n conspiracv of that minister sijiainst ili«
Chief Magistrate of the United States, or against the security of the
nation or its Government, and that in ca.se the Spanish pleniiwteutiaT
had justly drawn on himself the treatment experienced, a sjJecifieatiM
of tbe crime and ex\i\\>\V\o\\ q? \.U% v^wifs ought to have Iwen the &»'
874

YRUJO'S CASE. [§ 106.

mmnuicatiou made, instead of that silent transmission of copies of
rrespondeuce in question, which was itself a confirmation of the vio-
at and causeless procedure of the American Government. He even
lows himself to assert the singular pretension of the marquis, as the
inister of a foreign nation, to the peculiar rights and privileges of
merican citizens under the Constitution of the country.
" It would be an useless repetition of remarks already made to point
t the tendency of these spurious doctrines and pretensions ; but it
a.y not be amiss, once for all, to substantiate those remarl^s by the
test as well as the highest authorities on public law, premising only
at a material error of fact runs through the answer of Mr. Cevallos.
3 takes for granted that the letter of January 16 to the Marquis do
*ujo, which cut off official communication with him, stripped him at
B same time of the immunities attached to his character, and sub-
^ted him to the municipal jurisdiction. However justifiable this
nrse might have been, it is neither the import nor has it been the
'ect of that letter.

'^The rights and the responsibilities of public ministers are perhaps
where more clearlj" laid down than by Mr. Bayneval in his work en-
led ' Institutions du droit de la nature et des gens.'
''^Mais* l'immunit6 dont il s'agit n'assure point I'impunit^. Si le
nistre oublie lui m^me sa dignity ; s'il perd de vue la maxime qu'll ne
ut ni offenser, ni ^tre offense ; s'il se permet des injustices, des acrtes ar-
braires ; s'il ose troubler I'ordre public, manquer aux habitana^ au sou-
rain luimeme ; s'il conspire, sHl se rend odieux^ suspect ou coupable, il
it 6tre puni, mais par son souverain. Cest un devoir pour colui ci.
)st nne condition tacite mais essentielle de I'admission de son agent. Le
uverain prfes duquel celui-ci reside pent aussi, selon les occurrences,
bndre des mesures de siiret6 contre lui ; il pent inte^Tompre toute com-
inicatiorij tout rapport avec lui; il pent m6me le renvoyer de ses fitats;
en cas de resistance, employer la force pour le contraindre; car
pareil cas, le ministre se met dans un 6tat hostile, et devient lui-
3me I'auteur de la violence qu'il ^prouve ; il manque aux obligations
lele caract^re dont il est revetu lui impose; il d6truit par 1.^ luimeme
caractfere, et par consequent les prerogatives qui y sont atta<5bees.'
" The authority of Mr. Rayneval has been cited, not only because he is
late a writer (his work being published in 1803) and of known tal-
ts, but because he has, through the greater part of his life, been prac-
;ally occupied in diplomatic affairs, sometimes in the foreign depart-
mt under the French Government and sometimes as its minister
road. To the best means, therefore, for understanding both the law
d the practice, he adds the advantage of deriving an impartiality be-
een the pretensions of foreign ministers and those of the sovereign
reiving them from his having been in situations to maintain both.
" Should authorities longer known to the public be called for in this
se, Grotius, Bynkershoek, and Wyquefort will be found to speak a
nilar language; and above all, Vattel, as will be seen by the pas-
ges here extracted LIV, Chap. VII, §§ 94 and 95 :
" ' Si I'ambassadeur oublie les devoirs de son 6tat, s'il se rend ddsagr^a-
3 et dangereux, s'il forme des complots, des entreprises prdjudiciales
repos des citoyens, ^ I'fitat ou au Prince ^ qui il est envoys, il est
rers moyens de le reprimer, proportionnes a la nature et au degr6 de
faute. S'il maltraiie les sujets de I'fitat, s'il leur fait des injustices,
I use contre eux de violence les sujets offenses ne doivent point
30urir aux magistrats ordinaires, de la juridiction desquels I'ambas-

*Liv. II, Chap. XIV,^.'^. '

§ 106.] APPENDIX.

sadeur est ind^peudaut, par la inline raisou ces magistrats ne peuveut
agir directement contre lai. II faut eu pareilles occasions s'adres^r
au souveraiu, qui demande justice au maitre de I'amba^sadeor, eu cas
de retus peut ordoDiier au ministre msolent de sortir de ses Stats.

^^ ' Si le ministre Stranger offeuse le Prince luimeme, hHI lux winqu
de respect^ s'il brouille r£tat et la cour par ses intrigues, le Prince
olfeusl, voulant garder des m^nagemeus particuliers pour le maitre, Be
borne quelqutfois k demander le rappel du ministre, ou si la faate est
plus considerable, il lui defend la cour en attendant la rSpanse du mmtn;
dans les cas graves, 11 va mSmo jusqu'^ le chasser de ses £tatsf'

'< To these passages from Vattel, au extract from a succeediug one
may i>roperly be added as a concise and conclusive reply to a consider-
ation which Mr. Oevallos seems to regard as particularly supporting the
pretensions of the Marquis de Yrujo. In requiring, on the occasion of
a demanded recall of a public minister, that regular proofs sbould ac
company a specified offense, Mr. C. gives as a reason that ' the contrary
doctrine would leave ministers at foreign courts at the mercy of the
Governments there, and deprive them of the sacred and necessary in-
dependence requisite for the discharge of their duties, a monstroas doc-
trine, yet a necessary consequence of admitting the principle of removal
without those preliminaries.'

"Vattel, referring to a like argument used in a case which he cites,
makes the following remark :

" ^ Elle seroit bien plus malheureuse, la condition des princes, s'iis
^toient obliges de souffrir dans leurs Mats et a leur cour un mimirt
^&a<7r^a&/e, ou justement suspect, un brouilIon,un enuemi masqu^sous
le caract^re d'ambassadeur, qui se pr^vaudroit de son inviolability poor
tramer hardiment des entreprises peniicieuses.'*

" The validity of this reflection of Vattel is illustrated by the best at-
tested experience, which has constantly shown a greater tendency in
foreign ministers to abuse their privileges and pervert to evil purposes
the benevolent policy of permanent legatious than in Governments to
exert an undue authority over the ministers residing near them.

"No institution could promise better to the peace an I harmony of na-
tions than that which mutually places near friendly Governments well-
chosen representatives, always on the spot to explain difficulties, tore-
press unjust or extravagant jealousies, to remit faithful intelligence,
to promote justice, and by these laudable offices to cherish that confi-
dence and good will which alone can maintain peace among nations.
And where this important trusti is committed to enlightened and up-
right functionaries, of whom there are many honorable examples, who
consult the true object of the diplomatic establishment, its bappy
fruits confer on it the highest praise. But how otten has there been
occasion to lament the course actually pursued by those intended organs
and guardians of the friendship of nations t ilow often has it be^^
found that, instead of the good which they might do, both to the conn
tries appointing and to those receiving them, all their address is effl-
ployed in the evil task of corrupting the citizens, of poisoning the
councils, and of disturbing the tranquillity of the latter! How often
are they found to sacrifice every patriotic consideration to their selti-^^
views, by representations to their Government calculated, not to correct
injurious errors, or impart salutary truths, or promote a wise and hon-
orable policy, but to flatter prejudices, to stimulate jealonsies, to dis-
guise or pervert facts, or to varnish and recommend projects contrary

• Livre IV, Chap. VII, J 96.

876

YRUJO'S CASE. f§ 106.

o both the interests and the honor of their own country ; in a word,
>y telling their Government not what is true, bat what may be agree-
able ; not what will promote its just and useful objects, but what will
eoommend themselves to the favor of their superiors and pave the
ray to higher honors or advantages for themselves.

^^ That this is not a picture drawn by fancy for a particular occasion
irill be admitted by all who have the least acquaintance with the his-
ory of diplomacy. Instead of citing cases, which it would be so easy

0 multiply, a single but very unexceptionable authority shall suffice.
'^M. Oallier^s, who held an important station in the French cabinet,

kfter having been employed at different times in diplomatic missions,
lelivers, in his ^Mani&re de N6gocier avec les Souverains':*

^* ^11 faut rendro justice ^ la plus part des legitimes souverains, en
lisant, qu'd y en a tr^s pen qui se portent d^eux-m^me 4 des semblables
lesseins; presque toutes les entreprises iujustes, et les cabales qu'on
ait en leur nom dans les autres 6tats, leur sont sugg^r^s par leurs
niuistres, ou par quelque n^gociateur qui les y engagent, en s^offrant
le les ex6cuter, bien loin do les en d^iourner, et les n^gociateurs ne sont
>as ^ plaindre quaud ils tombent dans les filets qu'ils ont euxm^mes
endus pour autres ; on pourroit alleguer divers exemples de la \6vit6
le cette observation, et on se trouvera toujours dix centre un ou les
i^gociateurs ont 6t(i les auteurs et les soliciteurs des pareilles entre-
irises pour se faire de fl&te anpr^s de leurs Princes.'

^^ Mr. Gevallos is unfortunate in all his attempts to vindicate the con-
luct of his Government on this occasion towards the United States.

^^Beferring to the delay in the promised return of the marquis, as-
ligned in the letter to him of January 15, 18oG, as a ground on which
[lis visit to Washington was reprehended, and a communication with
lim refused, Mr. Gevallos not only denies the sufficiency of the delay,
f real, to justify the measure, but denies that the promise required
:he departure of the marquis until his return should be freed from the
risk incident to the state of war.

^'The best answer to this construction of the promise will be found in

1 brief review of the correspondence, between the ministers extraordi-
lary of the (Jnited States and Mr. Gevallos.

'* In the letter from those ministers, already cited, they expressly state
the demand of the President to be ' the iminediate reaaW ot the Marquis
Je Yrujo,' lor reasons which rendered his • longer staij^ in the quality of
minister plenipotentiary ^highly impropeii*,'^

" In the answer, Mr. Gevallos suggests that as the marquis had asked
ind obtained the royal ])ennission to come to Spain at the Heanon wliicii
shall Le convenient to him to make his i)assage with the most probable
safety, it was hoped that the Government ot the United {States would
sonsider this as a proper mode of reconciling their wish with a due re-
spect for the character of the minister plenq)otentiary of ilis Majcst.y.

'* In the reply of the American plenipotentiaries, citing not the words
l)ut the sense of Mr. Gevallos, they observe that as His Majesty had some
uime since given leave to his minister plenipotentiary near the United
States to return to Spain in the course of the present favorable season^ &c.,
uhey were very contident that the mode proponed of complying with the
request of their Government would be satisfactory.

»* If there were any ambiguity in the terms by which Mr. (/cvallos ex-
pressed the season for the return of the marquis, an ambiguity which
)ught not to be presumed, the sense in which they were understood by
:he ministers of the United States is perfectly free from it. Ihey ex-

* Chap, iz, p. 76, flrat paragraph,

877

§ 106.]

APPENDIX.

pressl y refer to the season, uot to the war^ but of the year auil even the
prencat season of the year. If Mr. Cevallos had , therefore, meant not the
season of the year, bat of the war, his candor would never have per-
mitU^d him to be a party to an arrangement in which he clearly under-
stood the intention of the other party, whilst the other party misunder-
stood his intention, and whilst he knew that they did so. He would
have corrected their misconception, by an explanation required by good
faith, instead of confirming it by the silence which observed.

"Another reflection annihilates the plea now urged. The object of
the President, communicated by the American ministers to the Spanish
Government was the immediate recall of its minister, because his longer
stay in the United States had become highly improper. The object of
the Spanish Government was to spare the feelings of its minister by
substituting a return by permission in place of a recall ; and in this
change of mode, which equally produced the departure of the offensive
minister, the essential object of the United States, their plenipoten-
tiaries acquiesced and anticipated the acquiescence of their Govern
raent. How could Mr. Cevallos suppose that, with this esseutial object
in charge, they meant to be satisfied with an arrangement which com
pletely defeated it, which, instead of producing the immediate departure
of the minister whose recall was demanded, permitted him to remain as
long as an obstinate war, just entered into by Spain, might be pro-
tracted I How could he suppose that if the ministers could have so far
forgotten the purport of their orders just presented to him, that the
Government of the United States would so far forget what it owed to
itself as to accept, for an immediate recall of the minister who had so
highly oflfended it, his voluntary return at any time within a i»eriod80
likely to be of protracted duration? How could the American minis
ter, in fact how could the Government of the United States, 8npi)08e
that so preposterous an expectation could ever enter into the disceniing
mind of His Catholic Majesty's first minister of state!

*' Mr. Cevallos dwells on a passage over the Atlantic in time of war
as a risk unjust towards the marquis as it would be unreasonable to-
wards his successor.

"Does he su[)pose, then, that this tenderness is due to a pubUc minis-
ter who has abandoned himself to the career in which the Marqais de
Yrujo has been traced! Can he suppose that a Government is to toler-
ate the indefinite stay of an offensive minister, and subject itself to a re
iteration of his insults because the remedy may expose him to i)er8onal
inconveniences! Such an expectation would, it is true, be unjust and
unreasonable ; not, however, as it relates to the culpable minister, bat
to the ofifendeil nation. If, besides, the mere recall or removal of the
minister, the risks of the sea in time of war be an additional conse-
quence of his misconduct, they ought to be an additional restraint from
acts which might justly lead to that consequence. These risks never
can be a consideration to which a (Government can be expected to sacri
fice the essential respect which it owes to itself, and the satisfaction
due in such a ca^e from a friendly Government. More than this, Mr.
Cevallos ought to have recollected that the minister in question actually
passed these<\ on his original mission to the United States whilst Spain
was at war with the same power as at present ; and that this is not the
only instance in which the sea has been passed in time of war by Siwn
ish ministers appointed to the United State?.

** lie may be informed also that it has been usual for both French and
EuiTlish ministers to cross the Atlantic during war both in missions to
and returns from the United States.

Sl^

YRUJO'S CASE. [§ 106.

*'Tbe anxiety of Mr. Cevallos to trausfer to the Government of the
nited States the blame which adheres to that of Spain has led him into
TorHof various kinds. Among others, he has permitted the assertions
> escape from him that the letter to Mr. de Yrujo, closing the commu-
ition with him, was scarcely half a year after the demand of his recall
t Madrid, and that the promise of fulfilling the wish of the American
overnment, even by the return of the marquis on leave, was an excess
f condescension on the part of His Catholic Majesty.

**Had the interval between the demand of recall and the refusal of
irther com munication been correctly stated the inference of Mr. Cevallos
ould nyt have been warranted. Six months was evidently a longer time
lan could have been requisite for the transmission of instructions from
le Spanish Government to its minister in the United States. With
le aid of several copies, always employed in time of war, two or three
onths are amply sufficient; and as has been already noticed, commu-
ications of dates posterior to the promise of his return to Spain had
iquestionably been received by the marquis from his Government a
^nsiderable time before his visit to Washington took ])lace. But the
atement of Mr. Cevallos is not correct, and the error is the more sur-
mising, as it ought to have been prevented by the face of the very docu-
ents on which he was commenting, or rather by the very dates which
i cites from them. The letter demanding the recall bore date the 13th
pril, 1805 ; the date of the letter to the marquis on his arrival at Wash-
gton was January 15, 1806, making an interval of more than eight
jstead of scarcely six months.
" in calling the promise that the marquis should return on leave even

exchange for a recall, an excess of condescension on the part of His
itholic Mujesty, Mr. Cevallos has created a difficulty of replying, with-
it observations of a nature which the Government of the United States
>uld always reluctantly employ towards a Government which it wishes
respect. Mr. Cevallos, before he indulged his pen in this very extraor-
nary sentiment, ought to have weighed more deliberately the consist-
cy with the reganl due from one Government to the reasonable ex-
ctation of another to be gratified by the removal of a public minister

the mere consideration that his character or conduct was disagree-
le ; and that this reasonable expectation becomes a positive and in-
Qtestable right in such a case as that in question has been shown to
. He ought to have reflected that the language held by him implies
a,t a Government has a right to keep an obnoxious representative
ar a foreign Government, in defiance of the will of the latter, within
e limits of its own sovereignty ; a doctrine to which neither His Cath-
c Majesty nor any other sovereign would listen for a moment. These
lections would have been suggested by any one of those accredited
iLors on the law of nations to whom Mr. Cevallos has appealed.
3 would even have been led by them to reflect that a Government in
tempting to obtrude or continue a minister near a foreign Govern-
*nt to which he was unacceptable, violates the first principle of dii)-
natic policy, not less than it forgets the dignity which ought to be
3U in all the proceedings. Mr. KaynevaPs remarks on this subject
aid not be more pertinent :

" * Le premier devoir d'un ministre public est de se rendre agr^able,
inspirer de la confiauce, de se faire consid^rer: si done un sonverain
anifeste de la repugnance h le recevoir, il y a de Pimprudence ^
:iger son admission; et si par des circonstances particuliferes on lui
it la loi ^ cet 6gard, on doit pr^voir qu' un ministre d^sagreable rem-
ira mal sa mission. II faurt bien se p^n^trer de cette v6rit6 qu' un min-

879

$106.]

APPEXDIX.

i«tre public doit avoir de la coDsid^ratioa persoonelle. sH v«tt qu aa en
ait fioar son caract^re. La n^cessit^ fieat forcer de. difffmnkr aai?
r^tte di^Mimalatioii nait aa soccer des afTaireft comme « 2« iifutedi
Hoaveraio qui s'obBtiiie ^ soatenir an aierent qai deplait.'

^'Tbe letter of Jane 2, 1806, from Mr. Cevalios, having been aiKveml
by the American charge d^affiiires at Madrid, he replied m another
on the 24th day of Jane, in the same spirit and to the same eiktt: and
thi8 again receiving an answer from tbe same qaarter, it was iDtimatdl
in brief reply from Mr. Cevallos on the 18th of July, that as the motives
for demanding the recall of the Marqais de Trujo, had not beeo ex-
plained. His 31ajesty had given orders that the reclamation on tfai^sab-
ject shoald be addressed at Washington to the Government of the
United States.

^^ In the mean time the Marqais de Ynijo, thoagh he has not igaio
obtraded himself at the seat of Crovemment, has not retired frotu tbe
United States, and has lately invited, throagh an intlirect channel, the
acqaiescence of the Government in a modified renewal of his official
commnnications with it. Not sacceeding in this, he proceeded to sig-
nify peremptorily throagh the same channel that it was the panx»eof
His Catholic Majesty that he shoald continae to exercise in the Cuital
States the fanctions of his minister. Finding disappointment alone to
be the frait of these experiments he resorted to another, still throagh
the same channel, regardless of the light in which he placed both his
Government and himself, by sach versatile and inconsistent disclo^
ares. A day or two only after it had been signified to be tbe in-
tention of His Catholic Majesty that this particular minister sboaltl
continae to be his diplomatic fanctionary in the United States, it wa^
signified, withont any intimation or probability of intervening instruc
tions, that provisional arrangements existed for the use of a different
fanctionary of an inferior grade. As the Government of the United
States had, in the letter of the 15th of January, snfficiently explained its
readiness at all times to admit a successor to the Marqais deTrajo^tbe
proper answer was found in that letter to this abrapt change in the
aspect given to the intentions of His Catholic Majesty. No accredited
I successor, however, of any gimle has yet presented himself, nor couse
' quently has any reclamation, such as was intimated to the American
! (jharg6 d'affaires at Madrid, been received. From the foregoing ^evie^^
it~i8 manifest that if the Government of the United States be ondeniny
difficulty of justifying itself iu the case of the Marquis de Yrnjo the
difficulty arises not from tbe illegality or rigor of its proceedings towards
him, but from that excess of condi^sceusiou and forbearance for wbicb
his continuance to the present day within the United States and in tbe
enjoyment of the immunities of a public minister is a couspicuons raoii
ument.

*' It only remains to observe that the conduct of the American Gov
ernment throughout has been equally a proof of the disposition of tbe
United States, in spite of every adverse occurrence, to maintain bar
mony with Spain and to defer to the last moment the most just and
proper steps, which misinformations or misconstructions might possibly
render unpropitious to the relations between the two countries.

"December, 1806.

" Note. — The passage in the last sheet marked thus
in my note to Mr. Ceballos. — G. W. E."

880

is not inserted

DIPLOMATIC AND CONSULAR AGENTS. [§§ 107, 118.

Q resi)ect to Mr. Erviug's services, I have the followiug notes from
3. Robert C. Winthrop :

It gives me pleasure to put on paper what I told you this moruing
ut my old friend and kinsman, George William Erving, formerly our
lister at Copenhagen and at Madrid. I had left him in Washington
m I went down to Virginia, and spent a day or two with Mr. Madi-
at Montpelier, in 1832. I bore a message from him to Mr. Madison,
) said to me, in the most emphatic manner, ' I never had a more ca-
>le and faithful minister than Mr. Erving, nor one for whom I had a
ater regard.'

There was a marble bust of Erving in Mr. Madison's library, which
ow in my own possession, together with a large collection of Erving's
ers to Madison, which had been carefully preserved." (May 9, 1887.)
I might have added to my note about Mr. Erving that he was a man
a;reat accomplishment. He was a graduate of Oxford University,
wrote an elaborate little volume on the Basque language, which is
f among the rarities of public and private libraries, and he con*
iQted to one of the New York reviews a remarkable paper on the
le Republic of San Marino, which was then (sixty years ago) hardly
»wn on this side of the ocean. He was a noted political writer in the
rspapers in the days of Jefferson, more recently was nominated as
lister to Constantinople by General Jackson. The Senate reduced
grade of the mission to a charg6 d'affaires, and he withdrew his
06. He died in 1850 at nearly eighty." (May 10, 1887 )

§107.

CHINESE COURT CEREMONIES.

•

This question of presentation to His Imperial Majesty, while appar-
y one of form, is in reality a question of substantial and high im-
!)ance, because it involves the consideration of the equality of sover-
i states in their intercourse one with another, and the recognition
tiat equality by the Government of China by granting to the diplo-
ic agents accredited to the Emperor the audience to which by public
they are entitled." And this question is more important now than
as in 1873, inasmuch as in the interval China has accredited diplo-
ic representatives to this Government, *< who have been cordially
ived and treated on an equal footing of honor and respect with the
esentatives of other foreign powers," being invited to the Presi-
d's inauguration, &c.

Mr. Bayard, Sec. of State, to Mr. Denby, Dec. 11, 1686. MSS. Inst., China. See
as to China, supra, $ 67.

§118.

CONSULAR AGENTS.

I the text, vol. I, § 118, p. 771, is given an instruction by Mr. Hunter,
istant Secretary of State, to Mr. Everett, May 28, 1855, intimating
. as the law then was, consular agents were not, strictly speaking,
ers of the United States, being merely the agents of the consuls
at that time appointed them. It should now be observed thiit
35C the appointment of these agents was, by statute (B. S., § IGO.*)),
sferred to the President, and they were thenceforth included in the

S. Mis. 162— VOL III 56 881

§$123,125.]

APPENDIX.

denoDiination of ^'coDsalar officers.^ (B. S. 1674; Coos. Eeg^lSST,
j»ar. *J1.) Consular ageoto are t^till beld, however, by the ooam to be
SLgeuis of tbeir supervising consuls (G^uid r. Staples, 0 Fed. Kem 159),
and are naid to Ije not tecbnicaliy officer8 of the United States by Fiist
Comptroller Lairrence. (4 Lawren«:e, F.rst Couifit. D*?c, «&) Bat
recognition of them is now uniformly n*qneste<l. (Ooas. lieg.,42.)

§ 123.

BUSINESS RELATIONS OF CONSULS.

" I transmit herewith a copy of a letter from

-, esq., dated the

12th instant, in which he complains that you refused to administer and

certify, on tlie application of certain parties by the name of ,the

oath of verification to a petition intended to be filed by the said parties
in the surrogate court of the connty of New York.

*^ Consular officers of the United States are authorized by CoDgress
and by some of the States and Territories to administer oaths; take
affidavits and depositions, and to i>erform other notarial services. Soch
services, when rendered under State or Territorial authority, are no-
official, and consular officers are not compelled to perform them.

<^The Department presumes that in the case in question you had
good reasons for your action, but, as a general rule, when the notarial
a|t requested can be ]>erformed without interference with official bosi-
ness, and without giving offense to the local government, consular oi-
cers are expected, upon the tender of a suitable remuneration, toper-
form it.

'^Applying these general instructions to the case of Mr. ■, it

follows that, in tbe absence of any of the above-mentioned reasons for
refusing ¥je application of his clients, you should, ui)on being satisfied
of the identity of tbe said applicants, have administered the oaths and
signfd the certificates as requested, and should still do so if the parties
appear before you again for that purpose.

'^Touwill understand that these instructions relate exclusively to
your exercise of notarial functions. They are not to be considered as
in any way bearing on the question of your right to issue certificates on
matters of law or of fact."

Mr. Adee, Second Asst. Sec. of State, to Mr. Johnson, Apr. 20, 18S7. MS&Inst^
Consuls.

§ 125.
JUDICIAL CONSULAR FUNCTIONS IN CHINA.

" I have to acknowledge the receipt of your dispatch No. 324, of the
3(1 ultimo, in which you present some interesting and important qaes-
tions as to the obligatory character of Eiile XV of the (Chinese) Con-
sular Court Eegulations of 18G4. That rule is as follows:

'* * Civil actions, based on written promise, contract, or instrument,
must be commenced within six years after the cause of action accrues,'
otliers, within two.'

CONSULAR COURTS IX CHINA. [§ 125.

*• As you correctly state, there are uo general statutes of limitations
dopted by Congress as att'ecting all civil proceedings in Federal courts.
iut it must be remembered that, by section 721 of the Revised Statutes,
'ederal courts sitting in a particular State must adopt the limitations
I force in such State, and in this way any gap in Federal legislation
I this respect is filled up. But as the Revised Statutes contain no
rovision as to limitations in civil suits which applies to our consular
mrts, we have, in such courts, either to fall back in each case on the
3neral principles of private international law or to adopt in advance
I was done by Mr. Burlingame, a general rule of limitation.
" If we revert to the general principles of private international law,
e following distinctions are to be observed :

'*As to mode of solemnization of contracts, the rule is, locus regit
turn;

'^ As to personal capacity, lex domicilii controls ;
"As to interpretation, lex loci contractus;
"As to process, lex fori;

'^ As to mode of performance, lex loci solutionis^ or the law of the place
l)erfonnance.

* In Scudder v. Bank (91 U. S., 406), while these distinctions were in
) main adopted, it was held that statutes of limitation, being mat-
s of process, are governed by the lex fori. If we assume, in the pres-
!i case, that there are no limitations b^^ the lex for i, then assuming, also.
It limitations of suit are part of the essence of a claim, we would re-
t, if the question be as to the time of payment, to the lex loci solu-
fiis, or the law of the place of performance.

^But however important these distinctions may be fn those of our for-
n consular courts in which the question comes up de novo, they are of
t subordinate interest in China, under the view I take of Rule XV
the Consular Court Regulations of 1864. I do not, it is true, regard
8 rule as a statute. Not only had Mr. Burlingame uo power to enact
tatute, as such, but the language of the rule shows that it cannot be
:arded as a statutory enactment. It limits suits on even sealed in-
uments to six years, and on unwritten engagements, no matter how
emn or how strongly evidenced, to two years. It contains no excep-
n in favor of minors or persons under disability. It must be re-
rded, therefore, not as a statute covering civil limitations in all their
irings, but as an assertion that suits in consular courts in China are
be limited as to time, the limitation to be adapted to the social and
siness conditions of the period of suit. In this way we can explain
t only the limitation of two years for unwritten engagements, which
the then immature and unsettled condition of our business in China
»y have been eminently proper, but the omission of the exceptions I
ve noticed above.

' I hold, therefore, that Rule XV of the Regulations of 1864, while
t to be regarded as having the authority or the fixedness of a stat-

883

^ 125.] APPENDIX.

ate, is to be viewed as a rule of court .expresjsiug a principle op^D t(
modification by the court that issne<l it. It stands in the same positioD
as do the equity rules adopted by the Supreme Court of the Uoited
States and courts of the several States, not as a statutory mandate,
to remain in force until expressly repealed or modified, but as a priu-
ciple and regulation of practice which it is open to the court to expand
or vary as the purposes of justice may require.

'^ As to the importance of your adopting such a rule there can be no
question. Were there no such limitation required in China, Ameri-
can merchants in China might be harassed by old debts and stale de-
mands outlawed in the United States, and their business much impeded.
Aside from this the principle that the right of suit should be limiteda^
to time, is as essential to public justice as is the principle that the right
of suit should exist at all."

Mr. Bayftrd, Sec. of State, to llr. Denby, Apr. 27, 1887. M8S. iDst., ClmuLSe^
as to limitation, 9upra, i 239.

" I have received your No. 332, of March 11, 1887, in which yoa dis-
cuss the appellate jurisdiction of the United States minister to China-

<* I concur with you in the opinion that there is no appeal from a coo-
sular court in China to the United States minister in cases where tLe
matter in dispute exceeds $2,500 ; but that the appeal in such caaes i»
to be to the circuit court for the district of California. This is in mj
judgment the proper construction of the statutes. As a matter of judi-
cial practice, the vesting of appeals in such cases in the circuit court
for the district of California has been accepted by that court. In the
case of The Piug-On, before Sawyer and Hoffman, JJ., in March, 188:^,
(7 Sawyer's Rep.i 483), the question was vigorously contested, audit was^
claimed that sections 4092, 4093, 4094, and 4109, giving jurisdictiou^
were in this respect annulled by section 4107. But this position was^
rejected by Hoffman, J., who thus states the law :

'* ^The provisions of sections 4094, 4109 and 4092 clearly indicate the
system Congress intended to adopt.

^^ ^In suits for $500 or less, the decision of the consular court is final.
unless the consul sees fit to call in associates and they differ in opinion.
In suits for more than $500 and not more than $2,500 an appeal lies to-
the minister, whose judgment is final. In suits for mpre than $2,500 iht
' appeal lies to the circuit court for the district of California, and a simi-
lar appeal lies from the final judgment of the minister in the eitreife of
original jurisdiction when the amount involved exceeds $2,600. Bat
this original jurisdiction is confined to cases where the consul is inter-
ested either as party or witness. It thus appears that Congress h»
seen fit to withhold, both from the consular court and from the minister,
final jurisdiction in all cases where the matter in dispute exceeds |2,dOO^
exclusive of costs, and to provide, in such cases for an appeal to tli<^
circuit couTl for the district of California.'

" I hold, ttieT^tot^, t\i^\. l\i^T\^V) <^1 ^V^(^l Ctoui the final jodgnent

8&V

TREATIES AND PROTOCOLS [§131.

of consular coarts in all cases where the matter in dispate exceeds
-$2,500 is in the circait court for the district of California^ and is, con-
«eqaently, not in the United States minister."

Mr. Bayard, Sec. of State, to Mr. Denby, May 4, 1887. MSS. Inst., China.

§131.
PROTOCOLS.

" I have received your No. 305 of the 6th instant, inclosing a com-
manication from M. de Freycinet, In relation to the protocol or dec-
laration adopted at the submarine cables conference in Paris, in May
last, for the purpose of determiaing the construction of certain provis-
ions of the convention of March 14, 1884. Immediately upon the recep-
tion of your dispatch I sent you the following telegraphic instruction :

*" McLane, Minister, Paris :

" ' You are authorized to sign protocol explaining cables convention,

subject to Senate's approval. Legislation pending before Congress,

which meets December C.

" * Bayard.'

"In this connection I think it proper to say that I received from the
French minister at this capital, under date of the 8th of July last, a
note transmitting proceedings of the cables conference held at Paris in
Ma3' last, and requesting me to authorize you, by telegraph, to sign the
protocol in question unconditionally. The reason given for this request
was that Mn order to enable the different Governments, and especially
the London Cabinet, to adopt such decisions as may be required by an
acceptance of the proposed declaration,' it was important < to change this
draft of a declaration without delay to a definitive instrument.'

** With this request to give you authority to sign the declaration
definitively I did not deem it proper to comply, for reasons which I will
DOW proceed to state, and which you may make known in a general way
to M. de Freycinet.

^< The object of the declaration in question is to settle the interpreta-
tion and effect to be given to the second and fourth articles of the con-
vention of th^ 14th of March, 1884. The first of these articles has refer-
ence to the punishment of persons for the 'breaking or injury of a sub-
marine cable, done willfully (volontairement) or through culpable negli-
gence,' &c. The second article named provides that the ' owner of a
cable, who, by the laying or repairing of that cable, shall cause the
breaking or injury of another cable, shall be required to pay the cost
of the repairs which such breaking or injury shall have rendered neces-
sary, but such payment shall not bar the enforcement, if there be ground
therefor, of Article II of this convention.

'< The declaration reads as follows :

"♦Certain doubts having arisen as to the meaning of the word voJon-
tairement inserteil in Article I[ of the conveutlou o^ tVi^ VWVjl ^^'^wt^iJcL^

§ 131.] APPENDIX.

xS&i, it is UDileratood that the impoaitioD of penal re^poasibility idcq-
tioDed ID the said article does not apply to cases of breaking or ofAm-
age occasioned accidentally or necessarily in repairing a cable, Kheo
all precantioDS bare beeo taken to avoid snch breakings or dama^

" ' It is eqaatly anderstood that Article IV of the convention bas i»
otber end and oagbt to have no other effect than to charge the com'
petent tribanala of each country with tbe determination, conformal'lf
to their laws and according to circamBtance», of the qneslion of the
civil responsibility of the proprietor of a Riible, who, by tbe lajinfot
repairing of sncli cable, causes the breaking or damage of another cablr,
and- in the same manner tbe consequences of that resjmnsibility jfit is
founil to exist.'

"By the Constitution of the United States treaties made unJenhe
authority of tbe United States are a part of the supreme lairofihe
land ; and the convention of tbe 14th of March, 1884, having been naile
io accordance with tbe Constitution, is a part of that snprenic law.

" lint, whilst it is true that treaties are a part of the supreme law of
the land, tbcy are nevertheless to be viewed in two lights — tbat \» to
say, ill the light of politics aud in tbe light of juridical law. Wkre
tfac construction of a treaty is a matter of national policy, tbe aatliori-
tatlve construction is that of- the political branch of tbe Govenimcnt.
It is the function of the Executive or of Congress, as tbe case may be.
When a political question is so determined tbe courts follow tbat detn-
mination. Sucb was tbe decision of tbe Supreme Court in cases arising
under tbe treaty of 1803 with France, of 1819 with Spain, and of iSt*
with Mesico.

"But where a treaty is to be construed merely as a municipal la<,
affecting private rights, tbe courts act wttb entire independence of 'Iw
Executive in construing both the treaty aud the legislation tbat Con-
gress may bare adopted to carry it into effect. And while great wrijrlit
might be given by the courts to an opinion of tbe Executive in tbat rfli-
tion, sncb an opinion would not be regarded aa having controlling f<>nr-

'* The declaration in question is intended, as has been seen, to wtilu
two questions. The first is tbat of penal responsibility nnder Ani«'o
II of the convention for the accidental or necessary breaking or iitjur>'
of a cable in an attempt to repair another cable ; tbe second ia tlint "f
civil responsibility under Article IV of the convention for injuries done
to a cable in an effort to lay or repair another cable.

"These are judicial questions to be determined by tbe courts befoie
whom appropriate suits may be brought. The only power that can
authoritatively constme a treaty for tbe judicial tribunals on questions
of the character described ia tbe legislature, or the treaty makiug po'^i
itself. In either case the result would be a law which would be bindini;
upon the courts.

" It is to be ob^ervei'. in this connection that tbe treaty iu qnestion i*
not self-csecutiug, and that it requires appropriate legislation togifcit

ssc

TREATIES AND PROTOCOLS. [§ 131.

ect. If under these circumstances the Executive shouhl now assume
interpret the force aud effect of the convention, we might hereafter
re the spectacle, when Congress acted, of an Executive interpretation
one purport and a different Congressional interpretation, and this iu
natter not of Executive cognizance.

^ For the reasons stated it was hot deemed expedient to authorize
1 to sign the declaration unconditionally. And as the session of
ngress was drawing to a close when the note of the French minister
s received, and it seemed impracticable to secure the Senate's ratifi-
ion of the declaration before adjournment, it was not thought best
send you such telegraphic instructions as were solicited.
' I desire, however, to refer to an incident in our diplomatic history
ich bears upon the matter under consideration and which might have
;n regarded as a precedent for the Executive in this case, if circum-
nces had seemed to require a different course from that which has
in talcen. I refer to the protocol which accompanies the treaty of
ladalupe Hidalgo in the volume of treaties between the United States
d other powers.

^The treaty, as signed at the city of Gaiidalupe Hidalgo on the 2d
February, 1848, was so amended by the Senate as to create doubts
its acceptance by the Mexican Goveruu^nt. In order to secure its
:ification by that Government, as amended, President Polk sent two
mmissioners, Mr. A. H. Sevier aud Mr. Nathan Clifford, to Mexico,
th instructions to explain to the Mexican minister for foreign affairs,
to the authorized agents of the Mexican Government, the leasons
I ich had intluenced the Senate in adopting the several amendments.
^Before the arrival of the commissioners at the seat of the Mexican
^vernment the Mexican Congress approved the treaty as amended
thont modification or alteration, leaving nothing to be performed ex-
)t the exchange of ratifications, which took x)lace on the 30th of May^
IS. But between the dates of the approval of the treaty by the
^xican Congress and that of the exchange of ratifications, the com-
ssioners had several conferences with the agents of Mexico, the re-
ts of which were reduced to the form of a protocol, which was signed
Messrs. Sevier and Clifford, on the part of the United States, and
ior Luis de la Kosa, on the part of Mexico.

' The expressed object of this protocol was to explain the ameiid-
nts of the Senate. It was defended by the Administration on this
and, and in a message to the House of Representatives the Presi-
t stated that * had the protocol varied the treaty, as amended by the
late of the United States, it would have no binding effect.' But
withstanding this explanation, the course of the President in not
mitting the protocol to the Senate before ttie exchange of ratifica-
is of the treaty was severely criticized in Congress."

Mr. Bayard, Sec. of State, to Mr. McLam^ Nov. 24, 183G. MSS. Inst., France.

§ 134.] APPENDIX.

§134.
FAVORED KATION.

Id Bartraiu r. Robertson, in the Sapreme Court of tlie Uuited SUl «i^
October term, 1866, the folIowiDg opinion of the conrt was delivertetf
on May 23, 1887, by Mr. Justice Field :

"The plitintiffa are mercbants doiog busiuess in the city of New Tort,
and in March and April, 1382, they made four importatioDS of brown
and nnreQued sugars and molasses, the prodnce and manufacture of
the island of St. Croix, which is a part of the dominions of tlie King
of Denmark. The goods wereregnlarlyenferedattliecustom-honseat
theportof New York, the plaintiffsclaiming at the time that they shooM
beadmiltedfreeof duty under the treaty with Denmark, bwansc like ar
tides, the produce and manufacture of the Hawaiian Islands, wen,
onder the treaty with their King, and the act of Congress of August 13,
1870, to carry that treaty into operation, admitted free of diity. Tlie
defendant, however, who was the collector of the port of Kew York,
treated the goods as dutiable articles, and, against the claim oftk
plaiutilTa, exacted duties upon them under Ibe acts of Cougre&t, Kith
out regard to those treaties, amounting to 433,222, which they jaid lo
the collector under protest in order to obtain possession of their goods.
They then brought the present action against the collector to rvrovn
the amount thus paid. The action was commenced in a court of ll»
State of New York, and, on motion of the defendant, was transferml
to the circuit court of the United States.

"The complaint sets forth the dil!'erent importations; thatlbearti-
cles were the produce and manufacture of St. Croix, part of tbe do-
minions of the King of Denmark ; their entry at the custom house,Hiid
the claim of tbe plainti&'s that they were free from duty by forw of Ibe
treaty with the King of Denmark ami of that with the King of the H»-
walian Islands; tbe refusal of tbe collector to treat them as freeuoder
those treaties, bis exaction of duties thereon to tbe amonnt stated, and
its payment under protest; and asked judgment for the amonnt. Tbe
ilefendantdemuried to tbe complaint on the ground, among others, that
it did not state facts sufficient to constitute a cause of action against
Lim. The circuit conrt sustained tbe demurrer, and ordered judgfinenl
for tbe defendant with costs (21 Blatch., 211) ; and the plHiniiflB bare
brought the case to this court for review.

" We are thus called upon to give an interpretation to the clHoeein
the treaty with Denmark which bears upon the snbject of duties on tbe
importation of articles produced or manufactured in its dominions, and
the effect upon it of tbe treaty with the Hawaiian Islands for the >d-
misaton without duty of similar articles, the produce and mannfautBR
of that Kingdom.

"The existing commercial. treaty between the United States and tbe
King of Denmark, styled 'Gdueral convention of fHendabip, commenc,
and navigation,' was concladed on the 36th of April, 1826. It m
afterwards abrogated, but subsequently renewed, with the exceptnu
of one article, on the 12th of January, 1858.

" The first article declares that ' tbe contracting parties, desiriug loli^f
in peace and harmony with all the other nations of tbe earth, by mean!
of H policy frank and eqnally friendly with all, engage matnaliy not ">
grant any particular favor to other nations in re9)*ect to commerce ni
navigation which shall not immediately become common to the otber
party, who shall enjoy the same fn'cly if tbe concession were freely

FAVORED NATION. [§134.

**^a(le, or upon allowing the same compensation if the concession were
<5oiKlitional.'

^^The fourth article declares that ' no higher or other duties shall be
^niposed on the importation into the United States of any article, the
produce or manufacture of the dominions of His Majesty the King of
penmark; and no higher or other duties shall be imposed upon the
^iiiportation into the said dominions of any article the produce or man-
Utacture of the United 6tates, than are or shall be payable on the
like articles being the produce or manufacture of any other foreign
c^onutry.'

*'The treaty, or convention as it is termed, between the King of the
Hawaiian Islands and the United States, was concluded January 3i>,
3 875, and was ratified May 31 following. Its first article declares,
that *for and in consideration of the rights and privileges granted by
His Majesty the King of the Hawaiian Islands,' and *as an equivalent
t herefor,' the United States agree to admit all the articles named in
u specified schedule, the same being the growth, produce, and man-
ufacture of the Hawaiian Islands, into all the ports of the United
States free of daty. Then follows the schedule, which, among other
4\rticles, includes brown and all other unrefined sugars and molasses.

** The second article declares, that ' for and in consideration of the
rights and privileges granted by the United States of America in the
preceding article,' and 'as an equivalent therefor,' the King of the
Hawaiian Islands agrees to admit all the articles named in a specified
«5chedule which were the growth, manufacture, or produce of the United
States of America, into all the ports of the Hawaiian Islands free of
cluty. Then follows the schedule mentioned.

" By the fourth article it is also agreed on the part of the Hawaiian
King Uiat so long as the treaty remains in force he will not lease or
otherwise dispose of, or create any lien upon, any port, harbor, or other
territory in his dominions, or grant any special privileges, or rights of
use therein, to any power, state, or Government, nor make any treaty
by which any other nation, shall obtain the same privileges, relative to
the admission of any articles free of duty thereby secured to the United
States.

*^ The fifth article declared that the convention should not take effect
until a law had been passed by Congress 'to carry it into operation.
Such a law was passed on the 15th of August, 1876. (19 Stat. L., 200,
chap. 290.) It provided that whenever the President of the United
States should receive satisfactory evidence that the Legislature of the
Hawaiian Islands had passed laws on their part to give full effect to
the convention between the United States and the King of those islands,
signed on the 30th of January, 1875, he was authorized to issue his
proclamation declaring that he had such evidence, and thereupon, from
from the date of such proclamation, certain articles, which were named,
being the growth, manufacture, or produce of the Hawaiian Islands,
should be introduced into the United States free of duty, so long as the
convention remained in force. Such evidence was received by the Presi-
dent, and the proclamation was made on the 9th of September, 1876.

*' The duties for which this action was brought were exacted under
the act of the 14th of July, 1870, as amended on the 22d of December
ot that year. (16 Stat. L., 262, 397.) The act is of general application,
making no exceptions in favor of Denmark or of any other nation. It
]>rovides that the articles specified, without reference to the country
Jrom which they come, shall pay the duties ])rescribed. It was enacted
several years alter the treaty with Denmark was made.

§ 145.] APPENDIX.

"That tho act of Congress, as amended, authorized and required the
duties imposed upon the goods in question, if not controlled by the
treaty with Denmark, after the ratification of the treaty with the Ha-
waiian Islands, there can be no question. And it did not lie with tbe
officers of customs to refuse to follow its directions because of the stipa-
lations of the treaty with Denmark. Those stipulations, even if con-
ceded to be self executing by the way of a proviso or exception to the
general law imposing the duties, do not cover concessions like those
made to the Hawaiian Islands for a valuable consideration. Tbev were
pledges of the two contracting parties, the United States and the King
of Denmark, to each other, that, in the imposition of duties ou goodi^
imported into one of the countiies which were the produce or uaann-
facture of the other there should be no discrimination against them
in favor of goods of like character imported from any other country.
They imposed an obligation upon both countries to avoid hostile legis-
lation in that respect. But they were not intended to interfere with
special arrangements with other countries founded upon a concession
of special privileges. The stipulations were mutual, for reciprocal ad-
vantages. *Xo higher or other duties' were to be imposed by either
u[X)n the goods specified ; but if any particular favor should l)e granted
by either to other countries in respect to commerce or navigation, the
concession was to become common to the other party upon like consid-
eration, that is, it was to be enjoyed freely if the concession were freely
made, or on allowing the same compensation if the concession were con-
ditional.

" Tbe treaty with the Hawaiian Islands makes no provision for the
imposition of any duties on goods, the produce or manufacture of t! at
country, imported into the United States. It stipulates for the exemp-
tion from duty of certain goods thus imported, in consideration of and
as an equivalent for certain reciprocal concessions on the part of the
Hawaiian Islands to the United States. There is in such exeinptionno
violation of the stipulations in the treaty with Denmark, and if the ex-
emption is deemed a ' particular favor,' in respect of commerce and nav-
igation, within the first article of that treaty, it can only be claimed hy
Denmark upon like compensation to the United States. It does not
appear that Denmark has ever objected to the imposition of duties upon
goods from her dominions imported into the United States, because of
the exemption from duty of similar goods imported from the Hawaiian
Islands, such exemption being in consideration of reciprocal concessions,
which she has never proposed to make.

^' Our conclusion is, that the treaty with Denmark does not bind the
United States to extend to that country, without compensation, privi-
leges which they have conceded to the Hawaiian Islands in exchange
for valuable concessions. On the contrary, the treaty provides that
like compensation shall be given for such special favors. When such
compensation is made it will be time to consider whether sugar from
her dominions shall be admitted free from duty."

§ 145.

GUARANTEE OF ISTHMUS IRANSIT.

" The Secretary of State, to whom has been referred the resolution of
the House of RepreseutativcH of the 16th instant, requesting iuforma-
tion as to what action has bee n taken ' by the Department of State to

800

GUARANTEE OF ISTHMUS TRANSIT. [^ HS*.

protect the interests of American citizens whose property was destroyed
^y lire caused by insurgents at Aspinwall, United States of Colombia
>> 1885,' has the honor to say that negotiations were commenced iu
October last and are now pending between the United States and Co-
otubia for the purpose of establishing an international commission to
^hom may be referred for adjustment, according to the rules of inter-
■ational law and the treaties existing between the two countries, the
laims of citizens of the United States against the Government of Co-
>mbia growing out of the incident referred to in the resolution of the
touse of Kepresentatives.

" It is understood to be the duty of the Government of Colombia; under
le thirty-fifth article of the treaty between the United States and New
rauada of the 12th of December, 1846, to keep the transit across the
(thmas of Panama upon any modes of communication that now exist,
• that may hereafter be constructed, *open and free to the Govern-
ent and citizens of the United States, and for the transi^ortation of
ly articles of produce, manufactures, or merchandise, of lawful com-
erce, belonging to the citizens of the United States.' This duty
3is expressly acknowledged by the Government of New Granada iu
e claims convention with the United States of the 10th of September,
.57, in which it was agreed that there should be referred to a commis-
:>u ' all claims on the part of corporations, companies, or individuals,
tizens of the United States, upon the Government of New Granada,
hich shall have been presented prior to the Ist day of SeptembcT,
;59, either to the Department of State at Washington or to the minister
' the United States at Bogota, and especially those for damages whicb
ere caused by the riot at Panama on the 13th of April, 185G, for which
e said Government of New Granada acknowledges its liability, arising
it of its privilege and obligation to preserve peace and good order
ong the transit route.'

*' This convention was afterwards extended by a convention between
le United States and the United States of Colombia, concluded on
ebruary 10, 1864, in order that certain claims might be disposed of
bich the commission under the former convention had failed to decide
iring the time therein allowed them.

"On several occasions the Government of the United States, at the
stance and always with the assent of Colombia, has, in times of civil
imuit, sent its armed forces to the Isthmus of Panama to preserve
merican citizens and property along the transit from injuries whicb
le Government of Colombia might at the time be unable to prevent,
at, in taking such steps, this Government has always recognized the
)vereignty and obligation of Colombia in the premises, and has never
;knowledged, but, on the contrary, has expressly disclaimed, the duty
r protecting the transit against domestic disturbance.
"The correspondence whigh this Department has had with the Gov-
•nment of Colombia respecting the pending convention, it is not deemed

891

§ 1 50.] APPENDIX.

compatible with tho pablic interest to communicate to Gongres^siu the
present state of negotiations.''

Mr. Bayard, Sec. of Stat«, Report, Feb! 19, 1887. House Ex. Doc. 163; 49th Coog.
2d seas.

§ 150.
PEACE OF 1782-'d3 WITH GREAT BBITAI>\

It was not until after the first e<lition of this work was printed that
I had the opportunity and leisure to examine the Stevens collection of
Franklin papers, purchased by Congress, and now on deposit in the
Department of State. As to the extraordiliary historical value of those
papers, as well as the singular skill with which they have been ar-
range<l by Mr. Stevens, I entirely concur with Dr. E. E. Hale in the
opinion expressed by him in the preface to the interesting volume pub-
lished this year by himself and his son (Franklin in France, from
original documents, by Edward E. Hale and Edward E. Hale, jr., Bos-
ton, 1887). Dr. Hale, in this valuable volume, closes his compilation of
the Franklin papers with 1782. My object in the present note is (be-
ginning shortly after Dr. Hale closes) to use the materials afforded by
the Stevens collection as a means of construing the treaty of peace as
definitely settled on September 3, 1783.

The questions which the Franklin papers help largely to solve are,
it should be recollected, of great interest in reference not merely to his-
tory but to international law. If, as the papers now before us show,
the treaty of 1782-3 was a treaty of partition of an empire, then
each of the two sovereignties thus separated carried with it all the inci-
dents that it had enjoyed prior to partition so far as this does not conflict
with the treaty limitations. The importance of this distinction is mani-
fest. If the United States tODk by " grant" under the treity, then the
rights of reciprocity, both as to fisheries and as to navigation, which
existed previously between the colonies and the parent state, could only.
80 it might be argued, be claimed under the treaty so far as it created
them de novo. If, on the other hand, the treaty was one of partition,
then these rights remained, except so far as they were limited in the
treaty. That the latter view is correct is, I submit, abundantly shown
in prior volumes of this work, supra^ §§ 150, 301 Jf. And it is so fnlly
sustained by the papers contained in tne Stevens collection that I have
thotlght it important to introduce into this appendix extracts from snch
of those papers as bear on this question.

Before, however, proceeding to this specific task it is important to
notice the vividness with which these papers bring before us, with an
accuracy heretofore unobtainable, tho leading personages who were*
concerned in the negotiation of the treaty. Tne more prominent of
these personages, whose letters, many of them in the original mann-
script, are now in the Department of State, and some of whose pri-
vate memoranda aad journals are also there deposited, are as follows:
The Earl of Shelburne, Mr. Charles James Fox, Mr. Richard Oswald,
Mr. Thomas Grenville, Count de Vergennes, Dr. Franklin, Mr. Jay, and
Mr. John Adams.

The condition of things, so far as concerned Great Britain, at the time
when the peace negotiations began, was as follows :

On February 27, 1782, Lord North being still minister, the opi)08ition
carried a res>o\wV\o\\ ^<fee\?L\:\w^ W^^ ^vV^\%^tsof further oflfensive war with

SO-:

TREATY OF 1782-'83 WITH GREAT BRITAIN: 6HELBURNE. [§ 150.

America tg be enemies of their country. On March S a resohitiou of cen-
sure ou the ministry came within a few votes of adoption. On March
15 a motion of want of confidence in the miiiistry was lost by a majority
of 9, but notice was given of its renewal on the 20th. On that day Lord
JS'orth resigned, and George III called on Lord Shelburue for advice.
Xjord Shelburne declared it essential that Lord Rockingham should be
made minister, one of the conditions being the recognition of the inde-
pendence of the United States. In the ministry thus constituted, Lord
Jtockingham, as prime minister, took the treasury ; Lord John Caven-
dish was chancellor of the exchequer; Mr. Fox, secretary for foreign
affoirs; Lord Shelburne, secretary for home and colonial affairs, while
T>unning, a lawyer of great eminence, and a personal friend of Sbel-
bame, entered into the cabinet as Lord Ashburton and chancellor of
the Duchy of Lancaster. As non-cabinet officers were Burke, pay-mas-
ter-general ; Thomas Townshend, secretary at war, and Sheridan, under
secretary of state. The Duke of Portland, afterwards prime minister^
^ent to Ireland as lord-lieutenant. Mr. Pitt declined to take any office
that did not bring a seat in the cabinet, and no seat in the cabinet wa&
offered to him.

LORD SHELBURNE.

The Earl of Shelburne, whose character is one of those as to which
historians have had the greatest difficulty in giving an explicit judg-
ment, bad, in his early political life, been associateil with Henry Fox^
the first Lord Holland, and with Lord Bute. Certainly two more unsafe
guides could not have been found: the first able, subtle, determined^
corrupt, making the amassing of wealth his chief parliamentary object;
the other a stupid and pompous egotist, without statesmanlike ability,
owing his position to the favor with which he was personally regarded
by the Princess of Wales during the minority of George III; and, by
his high tory views of prerogative, coupled with his pretentious man-
ner, acquiring great influence over that monarch during the early years
of his reign. Lord Shelburne's letters to both Fox and Buie show
characteristics which enable us to understand why, against Shelburne,
the charge of duplicity was so* frequently made. But it must be remem-
bered that Shelburne was then a young man conscious of great ability,
possessing great wealth, and with a natural ambition to take a leading
l>osition in English political life. English politics were at that time in
a chaotic state. There was no strong liberal party as such; (leading
Whigs had become, as in the case of George Grenville, advocates of high
prerogative. William Pitt, the father, withdrawn from political activ-
ity by ill health, was about for a time to be sunk in the obscurity
of the House of Lords. Lord Shelbuine's flattery of Loixl Holland and
Lord Bute was no more fulsome, and was probably no less entirely a
matter of form, than was Lord Chatham's flattery of most of the lead-
ing public men to whom his letters are preserved; and it must be kept
in mind that as soon as Lord Chatham reappeared on the political stage,
taking, whenever his health enabled him to take, aleading independent
part, he was sustained by Lord Shelburne with a resoluteness and en-
ergy which cannot now be questioned. But however this may be, of two
lK)ints as to Lord Shelburne we may rest assured. Whatever may have
been his early i)olitical associations, his personal sympathies, as his life
matured, were with the school of liberal political economists, of which
Adam Smith was the head, and among whose members were Franklin^
Price, and Priestley. He did not, indeed, avow republican sentimenta^

§ 150.] APPENDIX.

however much he may have regarded them as ia theory souud; ia this re-
apect following Halifax, whom he resembled iu not a few characteristics.
Yet his intimacy with philosophical republicans of the advanced whig
fichool, his impatient disdain of the old line aristocratic whigs, bis
opposition to the British navigation laws, his advocacy of free trade,
his views on the French revolution, taking, as did Jefferson, a wise in-
termediate position between the terroristic antagonism of Barke aud
the extravagant Utopian advocacy of Fox, all indicate that his convic-
tions were those of liberals such as Franklin and Jefferson.* All this^iu
the negotiations with America, which were to be conducted by hinij, wonld
lead him to strive for a peace which would establish free commerdal
relations between the two countries. But there were otixer reasons why
such a peace should not only be negotiated, but negotiated promptly.
Lord Shelburne, like Lord Chatham, had resisted the pressure of the
Ilockingham Whigs, led by Fox and Burke, for a recognition of Ameri-
can independence as a substantive prerequisite to be followed by
whatever treaties Great Britain's superior strength might then enable
her to impose. This, of course, would amount practically to Great
Britain sajing to the colonies, as soon as by acknowledging their in-
dependence she had detached them from their European aUies, ^^Go
off by yourselves ; I clear my skirts of you ; whatever you get from
me afterwards must be a matter of favor.'' On the other hand, Shel-
burne, like Chatham, clung to the idea of an imperial conf(^eratioD,and
when this was out of the question, to a treaty of ])artitiou, based onre-
ciprocal enjoyment of ancient rights. On this basis, as we will see, were
framed the provisional articles which afterwards took the shape of the
treaty of peace. And that they were peculiarly liberal to the United
States is due not merely to Shelburne's views, as above expressed^ but
to the necessity of his then political position.

The struggle between Fox and Shelburne for the control of the nego-
tiations with Franklin, then the sole minister of the United States in
Paris, will be noticed presently more fully. It is enough at this point
to say that the formal right in this respect was with Shelburne, since
the colonies belons^ed to him, and, until their iude|>eudeuce was ac-
kuowledged, the United States, to the British eye, were still colonies.
Fox, unable to submit to this conclusion, was about to resign, when the
death of Lo^d liockingham, on July 1, 1782, precipitated the resignation
not merely of Fox but of his immediate friends. A new cabinet was
framed, with Shelburne at the head of the treasury, Thomas Townshend
secretary for the colonies. Lord Grantham secretary for foreign affairs,
aud William Pitt chancellor of the exchequer. Of the cabinet, Mr. Ban-
croft (Formation of the Federal Constitution, Book I, Chapter III)thns
speaks:

^^The restoration of intercourse with America pressed for instant
coniideratiou. Burke was of opinion that the navigation act shonld
be completely levised ; Shelburne and his colleagues, aware that no
paltry regulation would now succeed, were indefatigable in digesting a
^^reat aud extensive system of trade, and sought, by the emancipation of
<:ommerce, to bring about with the Americans a family friendship more

*0f Sbclbnrne,Lecky (4 Hist. Enjr., 226, Am. ed.), while taking in other points a
lower view than that given in the text, writes : ** He was one of the earUest, ablest,
and most earnest of English free tra«ler«i, aud no stateaman of his time showed him-
self so fully imbued with the commercial views of Adam Smith. • • • His pri-
vate life Wiis eiuiueutly respectable. He bore a long exclusion from office with gwat
<li;:;nity and calm, and no part of his public career appeal's to have been iulliien«<l
hy any sordid d«^sire of emolument, title, or place."

894

TREATY OF 1782-'83 WITH GREAT BRITAIN: SHELBURNE. [§ 150.

beneQcial to Eusjlaiiil than tlieir former depeiidcjuce. To promote this
end, on the evening of the llth of February [1783], William Pitt, with the
liermi^sion of the Kin;^, repiire.l to diaries James Fox and invited him
to join the ministry of Shelburne. The only g:)oJ coumo for Fox was
to take the hand the young statesman ofiV>red; but he put aside the
overture with coldness, if not with disdain, choosing a desperate alliance
with those whose conduct he had pretended to detest, and whose prin-
ciples it was in later years his redeeming glory to have opp33ed."

On April 3, Pitt, still retaining, in the delay incident to the formation
of the coalition ministry, the leadership of the House, "presented," to
follow Mr. BaucrotVs narrative, " a bill framed after the liberal i^riu-
ciples of Shelburne. Its preamble, which rightly described the Amer-
icans as aliens, declared ' it highly expedient that the intercourse between
Oreat Britain and the United States should be established on the most
enlarged i)rinciples of reciprocal benefit ; ' and, as a consequence, not
only were the ports of Great Britain to be opened to them on the same
terms as to other sovereign states, but, alone of the foreign world, their
sliips and vessels, laden with the produce and manufactures of their own
eouutry, might as of old enter all British ports in America, paying no
other duties than those imposed on British vessels.'' The bill was op-
jiosed b}' Eden (afterwards Lord Auckland), as introducing a " bold
revolution in our commercial system." Its principle was sustained by
Burke, who urged that " all prohibitory acts be repealed," and that the
Americans should be left " in every respect as they were before in point
of trade." But before further action had been taken on the bill, Lord
Shelburue's ministry went out of office, the coalition having at last suc-
ceeded in forming a ministry which commanded a majority in the House
of Commons. Pitt going out of office with Shelburne, the bill was
dropped. By the coalition cabinet, which succeeded, it was utterly re-
pudiated; Fox, while apparently recognizing the justice of free naviga-
tion as a principle, declaring that "great injury often comes from re-
ducing commercial theories to practice." Fox's further proceedings in
this connection will bo noticed when we proceed to consider his general
attitude towards the United States after the overthrow of Lord North.
Lord Shelburne's high merits as the originator, together with Frank-
lin, of a system of pacification by which the interests of Great Britain
and the United States could each have been best subserved, will be
illustrated in future paragraphs. At present it may be enough to quote
Mr. J[3ancroft's estimate of him (10 Hist. U. S., 532) :

" It was he who reconciled George III to the lessons of Adam Smith,
and recommended them to the younger Pitt, through whom tbey passed
to Sir Eobert Peel ; but his habits of study and his want of skill in par-
liamentary tactics had kept him from political connections as well as from
political intrigues. His respect for the monarchical element in the British
constitution invited the slander that he was only a counterfeit liberal,
at heart devoted to the King ; but in truth he was very sincere. His
reputation has comparatively suffered with posterity, for no party has
taken charge of his fame. Moreover, being more liberal than his age,
Lis speeches sometimes had an air of ambiguity from his attempt to i>re-
sent his views in a form that might clash as little as possible with the
prejudices of his hearers." In one point alone must I dissent from the
above. Lord Shelburne when in office undoubtedly' did his best to give
the King as little pain as possible when his assent to American inde-
j>eudeuce was required, and when a treaty of reciprocity with America
M'as proposed. But 1 cannot see among Shelburne's papers, as given in

895

§ 150.] APPENDIX.

part in liU biography alreii<ly citeil, and Ju lurt in tbe papers Id ihia
Departiueut, auy evidence of peculiar I'tivereijce for" 1 be monarchical ele-
meDt." He did uot hesitate to defy George HI, fimt as to the American
war, and theu aa to the French revolution. "According to Lord Hol-
land," saya SirGr. C Lewis (Admiuistratious of Great Uiiuiiu, 50), "Beu-
thain always said that ' Lord Sbelimrne was tbe ouly uituiater be ever
heard of that did aot/ear the people ;' " atid it is clear from bU coune
that he looked to the people as the altimate arbiter of bis i>olicy. Aud
it is a singularly strong tribute to Sbelburne's capacity as a statesmaQ
that the provisional treaty with America, agreed to by bim iu l'$% tlte
censure of wbicb by the House of Commons, under the lead of Foi and
North, was the cause of his overthrow, was in 1783 adopted as a fiual
treaty by Fox and North as a measure required by the popular wilL

In DO part of Fox's stormy career did faction and passion more entirely
overcome his natural love of liberty and justice than in bis pnxxttl-
ings in reference to the negotiations with the United States for peace.
His vehement and powerful denonciations of tbe war bad been amont:
tbe principal blows under which the S^ortb administration bad totteml
and falleu. He had made it one of the primary conditions of tbe accept-
ance of power by. the Rockingham party, of wbicb he was the leader,
that the independence of the colonies should be promptly and QDre
nerved ly acknowledged. When, however, he entered into the new min-
istry, of which Lord Rockingham was the titular head, he fouuil liiiu-
self, as secretary for foreign affairs, at once brought into antagonisui
with Lord Shelbitme, who was secretary for borne and colonial al^ir*.
Lord IShelburne, as has been noticed, shared Lord Chatham's repn;:-
nance to a unilateral recognition of independence, and was uuvill-
ing to concede independence except as a basis of a system, if not ui
leilenuion, at least of business reciprocity. Had Pox bad exclusive coii-
ri'ul of tbe question of peace, he conld have settled matter* at ome
by committing the ministry to an immediate recognition of iudepemt-
enee. But the difficulty was that Fox bad no such exclusive control.
Negotiations with tbe colonies, as long as tbey were colonies, fell un-
der Shelburne's control; and Shelburne, while conceding the uece.ssiiy
of acknowledging indepeudeuce, determined to make this acknoffleilv'-
meut part of a treaty for tbe adjustment of all questions in dispute Lk-
tween the parlies, as well as for tbe establishment of libend bnsinew
relations between them. Shelbume, unable to see how negotiatiou?
with the colonies could fall under the department of foreign affairs
sent to Paiis Richard Oswald (of whom more berealter) to uepoiiate
wiib Fraukliu not merely as to peace but as to tbe future relatiousof
the two countries whom jwace was to seiwrate. Fox, assuming iiide[itiiJ-
ence, and regarding the United States as a foreign power, sent to raris.
also on a misBion to Franklin, Thomas Greu\ille, son of Gwip;
Grenville, tbe author of tbe stamp act, and the brother of Lord Teiuiile
and of William Grenville, afterwards Lord Grenville. Thomas (freii-
ville. who lived tobethesiirvivor of that remarkable family of hrotliets
was iu bis earlier years a devoted friend of Fox ; aud the letter <•{
Fox, introducing bim to Franklin, is, taken in counectiou with LuiJ
Sbelburue's flattering letters introducing Oswald, au illuatratiou of
the vast importance then attached in England to Franklin's iuflu-
euce. Fox, iu this introduction, retierretl to George Grenville's actio"
as uot in auy 'Haj to \«i w^m'.WV *a mdicating a contiouaucu of ll"

8Wi

TREATY OF 1782-'83 WITH GREAT BRITAIN : FOX. [§ 1 50.

le views iu the sou; aud to this Franklin replied, with' his usual
';, saying how much pleasure it gave him to meet any diplomatic
nt of Fox. Franklin thus found himself for awhile with two dis-
^t British negotiators seeking from him a settlement ; and from the
respondence now on deposit in the State Department it is plain that
was fully aware of the two distinct policies represented by these
otiators, and was determined to wait until it should appear which

of these policies would be adopted by the cabinet. He did not,
rever, have to wait long. On July 1, 1782, as has been already
Iced, on Lord Sockingham's death, Fox resigned, followed by the
^kingham Whigs, and went at once into an opposition as thorough
I as bitter as that he had previously maintained against Lord North,
ir G. C. Lewis, a Whig chancellor of the exchequer, disposed by
ty traditions to. sustain Fox, finds himself unable to accept the po-
[>n that Shelbume, in sending Oswald to Paris, had encroached on

province of Fox. ^*It is quite clear," he says (Administrations of
»t Britain, 38), <^ from our narrative of facts, and from the testimonies
ch we have cited, that Oswald's first visit to Paris arose out of a
er accidentally addressed by Franklin to Lord Shelburne before the
nge of ministry was made known to him; that Oswald returned to
is with the full knowledge of the cabinet, and as bearer of a message
t he would be speedily followed by Mr. Grenville, as minister pleni-
entiary, to treat with the French agent; that he communicated with

Fox when he was in London, and that Mr. Grenville knew he
I at Paris, and communicated with him almost dally when he was
re. Mr. Oswald's mission had nothing clandestine in the ordinary
se of the term. It was open aud avowed on both sides of the water.
7as known to Fox and the cabinet, and it was recognized in the
imu(iications of Mr. Grenville with Franklin and M. de Yergennes.
ther can it be said, with Horace Walpole, that Oswald was sent
thwart Mr. Grenville, for Oswald's mission preceded Mr. Gren-
e's." But Sir Q. 0. Lewis then proceeds to argue Grenville had
real cause for complaint, even when Shelburne determined to appoint
v'ald as commissioner to treat with Franklin, since if << Grenville found
experience that a separate negotiator for America was likely to in-
fere with the rest of the negotiation, he could have represented this
elusion to his own Government, and the cabinet would have then
ided the question with the advantage of his opinion." Oswald had not
n formally commissioned, and the appointment might still be arrested,
withstanding Lord Shelburne's announcement, if the cabinet thought
:o commit the entire negotiation to one person ; but that there was
practical inconvenience in the separation of the two functions, is
wn, so Sir G. G. Lewis proceeds to state, by the retention of the same
aration in the subsequent ministry of Shelburne, Oswald continuing
reat with the American commissioners, Fitzherbert (afterwards Lord
Helens) appointed to treat with France, Spain, and Holland. And
n when the coalition ministry came into power, while the Duke of
nchester took Fitzherbert's place. Hartley was sent to negotiate
h the American commissioners, and in this capacity signed the de-
tive treaty of 1783. "There is no evidence," Sir G. C. Lewis con-
ies, "of any intrigue on Lord Shelburne^s part," and so far from it
•earing that Lord Shelburne in sending Oswald was influenced by a
[re to propitiate the King, "Franklin's anxiety to secure Oswald's
ointment is a decisive proof that ' Shelbume's man' was not desirous
promoting the views which the King so fondly cherished ; but, on the

S. Mis. 162-~YOL in 67 * %Vl

§ 150.] APPENDIX.

contrary, that he was desiroos of promoting the views which the King
had quite recently held in the atmost abhorrence." It is clear, also, from
Franklin's own papers, ^Hhat Lord Shelbome did not use .Oswald as
the instmment of any royal intrigue, or for the purpose of incalcating
any peculiar views of his own;" and Sir O. G. Lewis further asserts
that there was nothing in ^Hhe Canadian paper," given by Franklin Uy
Oswald, at which Fox had any right to take umbrage. Sir 0. 0. Lewis
insists that Fox's reason for resignation was simply an unjustifiable
personal dislike of Lord Shelbume, and he sums up the question as fol*
lows: *'When Lord Rockingham died, and the King made Lord Shel-
bume, and not the Duke of Portland, prime minister, there were three
courses open to Fox : (1) To remain in Lord Shelbume's government; (2)
to resign with his friends and to form a separate independent party;
(3), to coalesce with Lord North and the tories. Of these three coorses
the last was, in our judgment, incomparably the worst, and this was
the one Fox selected." Still more strongly writes Mr. Bancroft (10
Hist. U. S., 551) :

<< To gratify the violence of his headstrong pride and self- will he (Fox)
threw away the glorious opportunity of endearing himself to mankind
by granting independence to the United States and restoring peace
to the world, and struck a blow at liberal government in his own coantrj
from which she did not recover in his life-time."

Earl Bussell, while seeking as far as possible to palliate Fox's course,
says, speaking of the treaties of peace with France and Spain, as well
as with the United States (1 Life of Fox, 344) :

^* It must be owned that these (the treaty settlements) were immense
concessions. But they all sank into insignificance in comparison with
that article which was the basis of the whole, that upon which Mr. Fox,
Mr. Burke, Lord Shelbume, General Conway, and Mr. Pitt were agreed,
namely, the independence of the thirteen colonies of North America.
To have acknowledged that independence, and to have continued the
war with France and Spain, seems to have been the favorite idea of Mr.
Fox. • • • Upon the whole, however, it seems to me, that with the
independence of America as a starting point, with the want of allies
still unsupplied, with our debt still increasing, Oreat Britain was more
likely to rise buoyant from an inglorious peace than from t^e contino-
ance of a war hitherto disastrous, and sure to be costly. The opinion of
Mr. Fox was different, and his dislike of the terms of peace led him to
a junction with a statesman whose errors he had often chastised and
whose want of foresight and firmness he had ever been ready to censure.'^
• • • Hence followed " that coalition which in the first place overthrew
Lord Shelburne's administration ; next destroyed that large and exten-
sive popularity which Mr. Fox at that time enjoyed, and finally mined
the Whig party."

But Lord Russell is in error in holding that Fox's objection to the
treaty with America was simply its connection with the treaties with
France and Spain. His opposition was far more radical and far more
antagonistic to liberal principles. This will appear from the following
sketch of his i)arliamentary proceedings in relation to the American
treaty :

The announcement in the King's speech on the opening of Parliament
on December 6, 1782, of the provisional treaty of peace, was followed by
an attack, though on diflFeren t grounds, from both wings of the opposition.
By Stormout, the recognition of independence was attacked because it
was irrevocaVAe*, \>ij 'Eo^^>a^^"aAvsj^ it was made part of a treaty virtnally

TKEATX OF 1782-'83 WITH GREAT BRITAIN : FOX. [§ 150.

of partition. Bat to Fox and bis friends the treaty was none the ]^8S
odious because it embraced the independence they had so' long striven
for. The King's speech Fox declared he "detested,'^ while Burke pro-
nounced it to be '< a farrago of hypocrisies and nonsense." It was plain
that if the two lines of opposition. Lord North's friends and the old
Whigs, led by Fox, should unite, they could, by condemning the peace,
overthrow the administration. But could they form an administration
to take its place f In the way of such a juncture was Fox's own decla-
ration that '* when I shall make terms with one of them, I will be sat-
isfied to be called the most infamous of mankind. I would not for an
instant think of a coalition with men who, in every public and private
transaction as ministers, have shown themselves void of every principle
of honor and honesty. In the hands of such men I would not trust my
honor even for a minute." On February 17 an amendment to the ad-
dress, so drawn a& to pledge a confirmation of the peace, but at the same
time asking time to consider it, was carried in the Commons 'against
the ministry by a vote of 224 to 208. A motion of censure was subse-
quently made, and Shelburne authorized Pitt, in case the ministry were
defeated on this motion, at once to declare their common resignation.
On this motion, as has been already stated, the vote, on February 22,
for the ministry was 190; for the opposition 207. On the same day
Shelburne announced to the cabinet his resignation, and recommended
the King to send for Pitt. This the King at once agreed to do, but Pitt
finding himself unable to form a ministry of strength enough to stand,
an interval followed which lasted until April 1, when the coalition min-
istry entered into ofi[Lce.

In Fox's speech of July 9, 1782, explaining his resignation, he said
that he resigned because ^'he found the majority of them (his associates
in the cabinet) averse to the idea of unconditional independence in
America, which he conceived it to be necessary to the salvation of the
country to have granted. If, since he quitted his employment, his
late colleagues had changed their opinion he rejoiced at the event."
(23 Pari. Hist., 171.)

Parliament shortly afterwards was prorogued for the long vacation.
In the mean time the preliminaries of peace with America had been
signed, and this fact was announced by the King on the opening of
Parliament when it reconvened.

On the debate on the address, December 5, 1782, Fox went so far as
to say that, ^' as to himself, he believed he really was of more service
out of office, and debating in the House, than he could possibly have been
if he remained in the cabinet, for he found that those measures which,
\rhile in office, he recommended in vain to the council, were readily
adopted when he laid down his employments." (23 Pari. Hist., 242-3.)
" You call for peace," so Mr. Fox in his speech on February 17, 1783,
supposed Lord Shelburne to have said, ''and I will give you peace that
shall make you repept the longest day you live that you ever breathed
a wish for peace. I will give you a peace which will make you and all
men wish that the war had been continued; a peace more calamitous,
more dreadful, more ruinous than war could possibly be; and the
efiects of which neither the strength, the credit, nor the commerce of
the nation shall be able to support. If this was the intention of this
noble person, he has succeeded to a miracle." (23 Pari. Hist., 486.)

On April 9, 1783, the coalition ministry being finally seated, "Mr. Sec-
retary Fox" vigorously opposed on principle any statutory relaxation
of the British commercial system in favor of the United States. (23
Pari. Hist., 726.) On May 8 a bill passed the "aoM^^, on mo\Kssv:L <il^^^.

§ 150 ] APPENDIX.

Fox, giving the King in council the power on or before December 20 to
oTake any regulation deemed necessary in respect to commercial inter-
course with the United States. This was adopted as a substitnte for
X Mr. Pittas bill, and subsequently passed the House of Lords. (Id., 895.)
By the '^ King in council," under Fox's auspices, an order was issued
-^ which <^ confined the trade between the American States and the British
West India islands to British-built ships, owned and navigated by
.British subjects." (See Bancroft's Hist. Fed. Const., 44 ff.) .

Inexcusable as was Fox's coalition with North, as a matter of ])er-
• sonal honor, far more inexcusable was his course on the peace qaestioD,
as a matter of political principle. He had taken the position, with
characteristic enthusiasm, of the vindicator of colonial liberties. He
had declared that if the colonies allowed themselves to be subjugated
they would be fit for nothing else than to be the subjugators of tiie liber-
ties of Great Britain. He insisted that the only tfUe course was to
^acknotv'ledge, by an act of full and absolute grace, their independence
^nd sovereignty ; and because Lord Shelbunie made this acknowledg-
ment part of a treaty by which the boundaries of the United States
were settled on a liberal scale, their fishery rights recognized, their claim
to the Mississippi seccg^d, and prosecutions and confiscations of loyalists
-stopped, he succeeded, in coalition with Lord North, in overthrowing
fLord Shelbume's ministry. Yet, while by the vote of censure he forced
' throagh the House he brought about this overthrow, he did not attempt
^toaaodify the provisional articles of peace, but readopted them as the
^definitive treaty of 1783, formally executed under his administratioD.
'Tlie fact is that he must on reflection have been convinced that thecen-
; sure which he had carried in the House, while efficient enough in get-
ting rid of a hated rival, would have been fatal, had it been made the
basis of a new system, to the interest of peace.

For, what would have been the result of acknowledging the independ-

ence of the thirteen colonies and then casting them adrift, to have their *

4>oundarie8, their relation to the fisheries, to the Indians, and to the

loyalists, settled by a new treaty, to be negotiated after a general Eoro-

; pean pacification, when the States, whose sovereignty was then recog-

.iiized, would have stood alone. Great Britain holding the ocean, the

./ports of New York and Charleston, and the Indian tribes as serfs,

4^Jierever they might roam f Judging from Fox's subsequent course

on the navigation question, judging from his readiness to crash the

maritime rights of the Union as far as he could even under the wise

and liberal articles of 1782, it is more than probable that, had be been

^ liberty to impose a new treaty on the United States, after bsTing

.^adcnowledged their independence, he would have insisted on conditiODS

which would have necessitated a renewal of the war. In fact, in ^^

vnounciug as monstrous the concessions of the articles of 17S2, iu his

tspeech censuring these articles, he pledged himself, should he himself

undertake a new treaty, that at least such treaty should contain no

such concessions; but that if the United States were to be permitted to

«njoy the independence so ostentatiously flung at them, they were to

-enjoy it shorn of the valley of the Mississippi, shorn of the fisheries,

burdened with the support of the loyalists, with a lien on their territory

i*or the benefit of Indian hordes owing allegiance to the British crovn.

:^ch a treaty as this, if it had been extorted, would have been the p^

cursor of a war which, however injurious it would have been to the United

States, would have exhausted British resources and have ultimately

900

TREATY OP 1782-^83 WITH GREAT BRITAIN: OSWALD. [§ 150:

ed in British defeats far more humiliating to Great Britain than those
ch preceded the negotiation of 1782.

at, although Fox did not attempt, after he had overthrown the
Ibume ministry, to change the terms of the settlement of 1782, he*
his best, as far as within him lay, to make that settlement not merely
lensome to the United States, but, by the very fact that it was thus-
le burdensome, proportionally mischievous to Great BritaiD.
.t the time when Pitt's bill, suspending as to America the navigatioir
3, was introduced, the United States had adopted no navigation laws
heir own, though these afterwards were passed by way of retalia-
. But while there was at this time a free interchange of shipping be-
en Great Britain and the United States, it was in the United States
i the swiftest and staunchest ships then afloat were built. On thiis
e of facts Pitt argued that it would be impolitic and unbusiness-like
Great Britain to say, **No, we will not let your vessels enter our
ice, though by keeping you out we lose our best ships." Yet, in the-
h of* this position and in defiance of his own prior utterances as to*
3Stricted intercourse with America, Fox, as we have seen, blocked:.
passage of the bill until the coalition ministry came in, and then pro-
k1 the passage of an act leaving the navigation question to be dis>
id ofi by an order of council, which, in a few weeks, shut United:
:es built vessels out of British ports.

* is true that this was a blow to the United Statesiship-building in>
St, but it was a still greater blow to Great Britain, as it was soon
id that British merchant vessels, built in Great Britain, were out-
Hi by United States vessels built in the United States ; so that when
Dice was open to other nations between the two, the latter were
)n. And to these very navigation laws by which Great Britain con-
1 herself almost exclusively to her own ship-yards and to her own
erials for ship-building, may be attribflted the fact that in the war of
I her merchant vessels were almost driven from the seas by American'
ateers, while her cruisers were outsailed by American cruisers. .
British navigation act did not take away from United Statics ship-
ders their superior skill; but by giving British ship builders a mon-
y of the business it Removed from them all fear of competition and:
b them in their old position of inferiority to the ship-buildera of the
ted States. And the British West Indies, by cutting off their sup-
3 from the United States, received an almost fatal shock. (Lecky^
b. Eag. VI, 285.)

ut a still heavier stigma rests on the order of council thus issued
er Fox's auspices. It was the precursor of a series of orders which-
ed America into the war of 1812 ; which, by their insolence and
iton oppressiveness, twice drove the Northern European powers into
loleon's arms, and in this way tended to protract his military ascend-
Yj and to vastly swell the amount of blood and treasure required to-
rthrow that ascendency, and which, by the consent of all publicists,
\ng whom the English are not^ the least conspicuous, are now hel<£
»e in gross violation of important sanctions of international law.

OSWALD.

ichard Oswald, who was selected by Lord Shelburne to open nego-
ions with Franklin in April, 1782, and whose name appears as one of
signers of the articles of 1782, was a Scotch merchant of London,
» had acted as commissar^^-general of the Duke of Brunswick in tho*
en Years' War. By marriage, as well as by purchase, he possessed
3iderable estates in America, and from his familiarity with Ameri*-

901

§ 150.] APPENDIX

can affairs he was frequently appealed to for information by LordNortli.
He was introduced and recommended to Lord Shelburne by Adam Bm%
of whom he was a disciple ; and his selection as negotiator at Paris was
due, not merely to his knowledge of and interest in American affiuiSj
but to his prior acquaintance with Franklin, with whose liberal com-
mercial views he fully sympathized. Shelburne's letter of credence to
Franklin was one singularly flattering to both Franklin and Oswald
" I find myself," so wrote Shelburne, April 6, 1782, " returned to nearly
the same situation which you remember me to have occupied nineteen
years ago, and should be very glad to talk to you as I did then, and
afterwards in 1767, upon the means of promoting the happiness of man-
kind ; a subject more agreeable to my nature than the best concerted
plans for spreading misery and devastation. I have had a high opinion
of the compass of your mind and of your foresight. I have often been
beholden to both, and shall be glad to be again, so far as is compatible
with your situation. Your letter discovering the same disposition made
me send to you Mr. Oswald. I have had a longer acquaintance with
him than even I have had the pleasure to have with you. I believe him
to be an honest man, and after consulting with our common friends 1
have thought him the fittest for the purpose. • • • He is fully ap-
prised of my mind, and you may give full credit to everything he assnres
you of. At "^he same time, if any other channel occurs to yon, I am
ready to embrace it. I wish to retain the. same simplicity and good
faith which subsisted between us in transactions of less imix>rtance.''
On Oswald's arrival at Paris he was informed by Franklin that in
the absence of Jay, Adams, and Laurens, co-commissioners, no defi-
nite action could be taken in negotiation. But on April 18 Frank-
lin urged on Oswald the importance of the cession of Canada to the
United States, and he placed a memorandum of his views in Oswald's
hands, suggesting, also, that so much of the waste lands of Canada
should be sold as would ^' pay for the houses burnt by the British troops
and their Indians, and also to indemnify the royalists for the cotAsca-
tion of their estates." "This," it was added, "is mere conversation
matter between Mr. O. and Mr. F., as the former is not empowered
to make propositions, and the latter cannot make any without the con-
currence of his colleagues." On April 23 this memorandum— the im-
portant character of which will be hereafter discussed more fully— hav-
ing been seen only by Lord Shelburne and Lord Ashbnrton (Dunning),
the cabinet adopted a minute that Mr. Oswald " shall return tp Paris
with authority to name Paris as the place of their future conferences,'
and " to settle with Dr. Franklin the most convenient time for setting on
foot a negotiation for a general peace, and to represent to him that the
principal points in contemplation are the allowance of independenoe to
America upon Great Britain being restored to the sitnation which she
was placed in by the treaty of 1763, and that Mr. Fox shall snbmit to
the consideration of the King a proper x)erson to make a similar com-
munication to M. de Yergennes." (3 Shelburne's Life, 183.)

Oswald was then directed by Shelburne to return to Paris, and to in-
form Franklin that Shelburne'had reluctantly come into the concession
of absolute independence ; that he would have preferred federal nnion,
but that such a measure being now impracticable he would accept in-
dependence, coupled with free trade^ the payment of debts, and the ^^
lief of the loyalists. Oswald remained but a short time in Paris, re-
ferring both Franklin and Vergennes to Thomas Grenville, who had then
arrived in Paris as Fox's rei)resentative in all matters which invoked a

903

TREATY OF 1782-'83 WITH GREAT BRITAIN: OSWALD. [§ ItO.

:eiieral pcaco. Ou M ay 14 lie returned to London, and on May IS Grenville
raa instructed by the cabinet '^ to make propositions of peace to the bel-
gerent powers upon the basis of independence to the thirteen colonies
1 North America, apd of the treaty of Paris." On May 23 Grenville
'as farther instructed to propose to Yergennes the acknowledgment
f the independence of America '' in the first instance." Shelburne,
till holding that negotiation with the colonies remained, until the for-
lal recognition of their independence, in his department, authorized the
eparture, on May 28, of Oswald for Paris to continue his negotiations
ith Franklin. But on Oswald's visiting Franklin, on May 31, he found
lat Grenville was on the spot claiming to lead the negotiations.
The temper of the Fox section of the liockiugham ministry towards
swald is illustrated by the following letter from Sheridan to Thomas
renville, May 21, 1782 :

''*' Mr. Oswald talks very sanguinely about Franklin, and says he is
ore open to you than he has been to anyone; but he is a Scotsman
1(1 belongs to Lord Shelburne. If the business of the American treaty
*eined likely to prosper in your hands I should not think it improbable
lat Lord Shelburne would try to thwart it." (It will be remembered
tat the negotiations with the colonies fell, not in Fox's department, but
I that of Shelburne.) ^' Oswald has not yet seen Lord Shelburne, and
r bis cajoling manner to our secretary (Fox) and eagerness to come to
.m, I do not feel prejudiced in his favor ; but probably I judge wrongly
henever the other secretary is concerned, for I grow suspicious of him
i every respect the more I see of every transaction of Ins." (Bucking-
tim Correspondence, I, 28.)

On June 4, 1782, Granville writes to Fox as follows :
^^ Mr. Oswald told me that Lord Shelburne had proposed to him when
Lst in England to take a commission to treat with American minis-
^rs ; that upon his mentioning it to Franklin now it seemed perfectly
greeable to him, and even to be what he had very much wished ; Mr.
Oswald adding that he wished only to assist the business, and had no
ther view ; he mixed with this a few regrets that there should be any
ifference between the two ofiQces; and when I asked upon what sub-
let, he said, owing to the Bockiugham party being too roady to give
p everything. You will observe though, for it is on this account that
give yon this narrative, that this intended appointment has efTectu-
lly stopped Franklin's mouth to me; and that when he is told that
[r. Oswald is to be the commissioner to treat with him, it is but nat-
ral that he should reserve his confidence for the quarter so pointed
at to him : nor does this secret seem only known to Franklin, as La-
i3'ette said, laughing, yesterday, that he had just left Lord Shelburne^a
mbassador at Passy." Grenville then proceeds to speak of the
Canada" conference, hereaiter commented ou ; to express his aston-
(bment at such a cession being thought advisable ; and then to throw
rhat proved to be a bomb into the cabinet by saying that while such
onferences were going on behind his back he could be of no further
86. *' Once more I tell you I cannot fight a daily battle with Mr. Os-
wald and his secretary (Shelburne); it would be neither for the advan-
ige of the business, for your interest or your credit or mine ; and even
' it was, I could not do it • • • Sheridan's letter of suspicion was
Titten, as you see, in a spirit of prophecy." To this came Fox's re-
ly of June 10, noticed elsewhere, which called for *' further ]»roofs of this
uplicity of conduct." (Buckingham Correspondence, ut svpra.) See
Lecky, Hist. Eng., 247 jf, reviewing the relations of .Grenville and
Oswald.

903

$ 150,]

APPENDIX.

Fox, however, not disposed to acquiesce in Grenville's withdrawal
from the contest, issued fresh x>owers to Grenville, received by him od
Jane 15, giving him authority to treat with the King of France " and
any other prince or state." But Franklin declined to consider this term
as including the United States, with whom negotiations would then be
in contravention of British legislation. But an act enabhng such ne-
gotiation to take place having subsequently passed, Fox at once de-
manded that the negotiation should pass into his hands. In this, how-
ever, he was overruled by a majority of the cabinet, on the ground that,
until there was an express acknowledgment of independence, tibe
colonies remained in Shelbume's department. On Fox's resi^ation,
which, as has been already noticed, was made public on the death of
Lord Bockingham, on July 1, 1782, followed by the accession of Shel-
bume as prime minister, Oswald was sent again to Paris as represent-
ing the colonial department, the headship of which passed to Thomas
Townshend. AUeyn Fitzherbert, English minister at Brussels, was ap-
X>ointed to succeed Orenville, Oswald thus remaining the sole represent-
ative of the ministry so far as concerned America. On July 6 Franklio
proposed to him the following ^' necessary" conditions on which peace
with America could be secured :

1. Acknowledgment of entire independence.

2. Settlement of boundaries.

3. Freedom of fishing.

Among the ^' advisable" articles were the following:

— Free commercial intercourse.

— Cession of Canada to the United States partly in payment of war
spoliation, partly to raise a fund.to settle refugee claims.

Heretofore the negotiations had been purely informal. On July 25,
1782, an enabling act having in the mean time passed Parliament, Os-
wald received a commission >giving him full authority to ^' treat, consaltf
and conclude with any commissioner or commissioners named or to
be named by the said colonies or plantations, * * * a peace with
said colonies or plantations, or any parjb or parts thereof With this
came instructions from Shelbume, saying that ^4n case yon find the
American commissioners are not at liberty to treat on any terms short
of independence, you are to declare to them that you have an anthority
to make that concession, an earnest wish for peace disposing us to par-
chase it at the price of acceding to the complete independence of the
thirteen States;" and he was further instructed to claim, as a matter
of justice, the settlement of debts due to British subjects prior to
1775, and the restitution of the estates of the loyalists. But, as will
be hereafter more fully noticed, the acceptance of Oswald's commission
was objected to by Jay, then, in Franklin's sickness and Adams's ab-
sence, acting as sole commissioner, on the ground that the thirteen
United States were spoken of as " colonies or plantations," their sov-
ereignty as independent States not being in these terms implied. It
was in vain that Franklin, when appealed to, said, that as the object
of the commission was to invest the ^^ colonies or plantations'' with
sovereignty, it was not unsuitable that they should be referred to by
their prior title to designate the objects of the settlement. It was in
vain that Yergennes urged the delay and irritation consequent opoo
an application for a merely formal change of this character, saying
that, after all, mere titles amounted to nothing, astheKingof Englaml
was permitted without protest from the French court to speak of him-
eelf as King of Yxane,^. Jay^ however, insisted, though the effect of

904

TREATY OF 1782-'83 WITH GREAT BRITAIN : OSWALD. [§ 150.

bis applicatioD, if it was logically pursued, would have been, by the
utecedent implied acknowledgment of the independence of the colo-
aies, to overthrow the whole policy of Shelbnrne, which was to make
bhe recognition of independence not a gratuity, to leave the United
States the victim, when in future they might be left without allies, of
whatever conditions Great Britain might impose, but a part of a sys-
tem of partition involving free interchange of reciprocal rights.

But Shelburne was not disposed to break on a mere question of form,
aind a new commission was issued to Oswald, in which tne colonies were
spoken of as *'The Unit^ States of Korth America,^ while at thasame
bime Shelburne remained firm in the position that independence was
tx> be recognized, not unilaterally, as a matter of grace, but bilaterally
by treaty. Oswald, however, was instructed by Townshend, under
9helbume's direction, on September 1, 1782, to accept the '' necessary
articles'' of Franklin, as a basis, waiving an express treaty stipulation
as to debts and refugee claims, which Franklin declared he had no
power to give. On September 11, 1782, Oswald, in order, perhaps, to
stimulate Shelburne to take more decisive action, wrote to Town-
shend saying (on what now appears to be erroneous information) that
the French court was endeavoring to keep the American commission-
ers from coming to a settlement, and that Lafayette was acting as agent
of the court to effect this object. That Lafayette was desirous of mak-
ing the best terms i)ossible for the United States and of inflicting the
greatest possible humiliation on Great Britain, cannot be questioned.
But not only was Vergennes, as we will presently see, desirous of lower-
ing the American ultimatum as far as was necessary to secure peace,
but neither he nor the '' court" would have been likely at that time to
have selected Lafayette, whom they regarded as a rash enthusiast ab-
sorbed in American interests, for any political mission of this critical

type.

Influenced, however, in part by Oswald's statement as to the position
of France, in part by intimations from Eayneval, who visited Shelburne
as a confidential agent of Vergennes, that if peace was not at once con-
cluded between Great Britain and America, America would continue the
war under the wing of France, the British cabinet determined to ad-
vance a step further, and on September 20, 1782, to give Oswald un-
limited powers. "Having said and done everything which has been
desired," so Shelburne, on September 23, wrote to Oswald, "there is
nothing for me to trouble you with, except to add that we have put
the greatest confidence, I believe, ever placed in man in the American
commissioners. It is now to be seen how far they or America are to be
depended upon. I will not detain you with enumerating the difficul-
ties which have been incurred. There never teas a greater risk run, I
hope the public will be the gainer, else our heads must answer for it, and
deservedly.^^

On October 5 Jay handed to Oswald a draft treaty which embraced
the main points previously submitted by Franklin, omitting, however,
the clause for the cession of Canada, which, as will be hereafter more
fully seen, Franklin regarded as essential to any permanent pacification
between Great Britain and the United States. On only one point in the
programme as thus modified by Jay was there any difficulty, viz, the
northeastern boundary ; but as to this Oswald ultimately accepted Frank-
lin's proposition that the question should be settled by a future commis-
sion. The draft treaty, as thus made up, was then forwarded by Os-
wald to Townshend, Oswald defending it on the ground that \t^ <iVs\^^\i

{

§ 150.]

APPENDIX.

was to reduce as far possible the points of difttsience betweeu the two
countries, and to establish between them a reciprocity of rights.

But the repulse of the allied attack on Gibraltar led the ministry to
think that terms more favorable would be obtained from the American
commissioners than those conceded by Oswald. In order, however, not
to put on Oswald the ungracious office of withdrawing his own conces-
sion, an additional envoy was sent to Paris, Henry Strachey, who had
been secretary of the treasury under Eockingham, and assistant secre-
tary of state under Shelburne. Strachey was authorized, as a last resort,
to accept all the American propositions except that which gave the rij|[ht
to dry fish in Newfoundland and the provisions as to the navigation
act, as to which it was added the executive had no power to act. In
a confidential letter of October 20, 1782, Shelburne wrote to Oswald in
the following words, which are none the less remarkable from the fact
that they refer to concessions which Shelburne afterwards adopted: *^ As
you desire to be assisted by my advice, I should act with great iusin-
cerity if I did not convey to you that I find it difficult, if not impossible,
to enter into the policy of all that you recommend upon the subject,
both of the fishery and the boundaries, and of the principle which yon
seem to have adopted of going before the commissioners in every point
of favor and confidence. The maxim is not only new in all negotiations,
but I consider it as no way adapted to our present circumstances, bat
as diaiiietrically opposite to our interest in the .present moment.'^ He
then recurred to his view that the peace to be solemnized was a ^' sep-
aration," to be followed, if not by '^ reunion," at least by " commerce
and friendship."

Immediately after Strachey's arrival at Paris, on October 30, 31, and
on November 1, 1782, meetings were held of the commissioners on both
sides, Franklin and Jay being re-enforced by John Adams. It was
settled by Adams and Jay, Franklin being overruled, but acquiescing,
as the least mischievous alternative, that there should be no commnni-
cation of their proceedings to Yergennes, a conclusion the bearings of
which will b© presently more fully discussed.

In the conference of November 1 both sides agreed to a modification
of the northeastern boundary, while the American commissioners re-
ceded from their demand of the right to dry fish on the coast of Netr-
foundland, accepting as an equivalent the use for the same purpose of
the unsettled parts of Nova Scotia, and the right of fishing in tbe Galf
of Sainl* Lawrence. The American commissioners, however, refused
to make any provision whatever for the refugees. (See, as to tbis po-
sition, comments hereafter given in sketch of Franklin.)

Notwithstanding the fact that Strachey united with Oswald in rec-
ommending the adoption of the draft treaty as thus amended (see Os-
wald to Townshend, November 8, 1782, Strachey to Townshendofthe
same date), it was received in London with much disfavor. George III,
when brought face to face with "separation," bolted, and could hardly
be brought to look on it as an established fact. "With a full appreciation
of the difficulties that arose from the attitude of the King, Shelburne
met the cabinet. Richmond and Keppel were very bitter against Os-
wald, who they declared was only an additional American negotiator,
and they proposed to recall him. This Shelburne and Townshend re-
fused to do, as they especially desired that Oswald should be in Paris
to negotiate a commercial treaty as soon as the necessary acts of Parlia-
ment had been i>a8sed." (3 Shelburne's Life, 298.) Shelburne, how-
ever, insisted on further efforts being made on behalf of the refugees,

90G

TREATY OP 1782-'83 WITH GREAT BRITAIN: OSWALD. [§ 150.

and Stracliey beiug at the time iu London was instructed to proceed
again to Paris to make sucti efforts.

On November 28 Henry Laurens, the fourtli American commissioner,
having arrived, there was a full meeting of the commissioners at Mr.
Oswald's apartment in Paris. It was then agreed that it should be
provided that there should be no further confiscation of loyalist prop-
erty or persecutions of loyalists, and that Congress should recommend
to the State legislatures to issue amnesties and to restore confiscated
property. The fourth article was extended to cover debts due during
us well as before the war.

The draft articles as thus settled were signed at once by all the com-
missioners; but to enable faith to be kept with France it was provided
that the treaty '' was not to be concluded until terms of peace shall be
agreed upon between Great Britain and France.'' Strachey agreed
with Oswald in vindicating the settlement. '' If," he wrote to Kepean,
<' this is not as good a -j^eaace as was expected, I am confident it is the
best that could have been made. Now, are we to be hanged or ap-
plaaded for thus rescuing England from the American warf

This terminates Oswald^s connection with the negotiations of 1782-'d3,
and, in fact, his political life, as he died in retirement a few months
after the fall of the Shelburne ministry. The treaty, as is noticed
above, was vehemently assailed by Fox, by Burke, and by Iforth;
and though it was regarded as final, was nevertheless censured by a ma-
jority of the House of Commons, thereby wrecking the Shelburne min-
istry. It has been frequently said that of all treaties executed by Great
Britain it is the one in which she gave most and took least; and in view
of the fact that Great Biritain at the time held New York, Charleston, and
Penobscot, and had almost unchecked control of American waters, her
surrender, not merely of the entire territory claimed by the colonies, but
of the Indians in that territory whom she had held under her allegiance,
of the rights of the refugees she had pledged herself to protect, and of the
Bsheriw in which she thus conceded to the United States a join t ownership,
presents an instance of an apparent sacrifice of territory, of authority, of
sovereignty, of political prestige, which is unparalleled in the history of
diplomacy. So, in fact, was it considered throughout Europe, as is ex-
hibited by a series of vivid statements taken by Mr. Bancroft (Formation
of Federal Constitution, Book I, Chap. Ill) from manuscripts to which
he had access. ^' ^ The English buy the peace rather than make it,'
^wrote Yergennes to his subaltern in London, their ^ concessions as to
boundaries, the fisheries, and the loyalists, exceed everything I had
thought possible.' 'The treaty with America,' answered Bayneval, ap-
pears to me like a dream.' Eaunitz and his Emperor mocked at its
articles." (Citing Joseph II and Leopold, Briefwechsel von 1781 bis
1790, 1, 146.) See also 4 Lecky, Hist. Eng., 284.

Yet the sacrifice was only apparent. Lord Bussell, in a passage else-
where quoted, declares, notwithstanding his devotion to Fox, that
Shelbnrne's peace was preferable to the continuance of war; and as a
matter of fact, as we have already said, the treaty was beneficial as
well as honorable to Oreat Britain. It gave to Great Britain, what she
never would have had if the Mississippi Valley had remained under
the lethargic control of Spain, a vast and energetic Anglo-American
population to supply her people with food, her mills with raw materials,
and her producers with customers. It opened wide, hospitable, and
sympathetic domains as abodes to myriads of British subjects, who,
if they had remained at home, would, in the misery and discontent they

(

§ 150.] APPENDIX.

wonid bave so greatly augmented, have thrown tbe body politic iutodes-
pair. And at that sapreme moment, wlien the Holy Alliance, embrac-
ing all continental Earope, declared its determination not merely tore-
store her revolted provinces to Spain, bat to crush England if she resistel
this conspiracy, it was the prompt answer of the Uiiited States to Eng-
land's call that made the conspiracy impossible, and enabled Eogland to
lemaiu, not merely dominant on tbe seas, bat the vindicator of a liberal
foreign policy on which her very existence was staked. We mast also
remember that had Fok's scheme succeeded, of an absolute recognition of
independence, as a sequenceof the surrender of Yorktown, while bevonld
have won a signal triumph over bis political adversaries, the recognitjoo,
coerced as it wonld seem to have been by the necessities of war, vonld
have been far more humiliating to Great Britaia than was the attitade
afterwards assumed and carried out by Shelbnme, of making what
under the cireumstancea was a voluntary partition of the empire, baaing
such partition, at least so far as concerned Shelbume and Pitt, on prin-
ciples of high statesmanship. It must be noticed, also, that by Foi'g
scheme the persons and property of loyalists would have been handed
over to tbe absolute control of tbe separate States of the TJnioD, at a time
when the popular animosity agaiaat these loyalists was at its highest
pitch, while there would have beeu full sweep given to the con&scation
or extinguishment of all debts due the mother country. By the Sbel-
bnrne settlement, on the other hand, coaflscattons and prosecutions of
loyalists were stopped, loyalist prisoners were relea sed, and a pledge
gireu that there should be no lawful impediments on either side to
the recovery of bona fide debts.

Bat we are bound, also, in construing the treaty, to ascribe it to a
higher motive than that of interest. Shelburne not only believed
that the United States, if there shoitld be an amicable partition of
interests with Great Britain followed by liberal reciprocities, vonld
promote the prosperity of Great Britaiu far more eSectively tban
could have been done by a colonial dependence, but be held) as a
fundamental article of his political creed, that by such a partition
followed by such reciprocity the interests of humaue civilization would
be far better subserved than they would be by independence granted
as a gift to be followed by commercial subjugation. On this princi-
ple Shelburne staked his political future, and lost. The same prin-
ciple was avowed at the time by Pitt, like Shelburne and Oswm, a
disciple of Adam Smith, but was afterwards dropped by him when be
became prime minister on the defeat of the coalition. Bat thoagb tbe
completion of Shelbnrne's policy, by a repeal of the navigation acts, vu
frustrated, and in its place were instituted insolent restrictions of Amer-
ican commerce, which led to the war of 18 L2, we must keep in mind, in
construing the treaty of 1733, that that treaty at least was a treaty of
partition, inspired by liberal principles, and to be applied iu sabordina-
tion to sach principles. It is on this principle of partition that rests tbe
right of American fishermen to the free enjoyment of the northeastern
fisheries. (Supnt, % 301 jF.)

A "eapplemoutary Dote" giviog a sketch of OawalU's liistory, subatuitiallf cvicn'''
log with tbe iucidents stated above, is appeodeU to Sic ti. C. Iienis' Brticlo on u>
BuokiDgbam papers, pabliahed in his "AdminiatratioDBof Great Britain," til. ^-
Ixwky, in blB notice of Oswald, 4 Hist. Eng., 272/., nudnly, I tbink, deprMiiW*-

VEBGENNES.

The French alliance with the United States was promoted, ou tbe
part of France, by two distinct impulses. Tbe first was entbnsi-

TREATY OF 1782-'83 WITH GREAT BRITAIN ; VEROENNES. [§ 150.

asm ibr liberty, in part philosophical, under the anspices of the
Encyclopedists, in part sentimental, inaugurated by Eousseau. By
this enthusiasm not merely young nobles, such as Lalayette, were
fired, but even Louis XYl and his Queen felt its effect, perhaps not
uninfluenced by the feeling that it was just as well*that the flre which
was thus lit should bum itself out across the Atlantic; and to express
this royal sympathy pictures of the King and Queen in full robes were
sent to the Continental Congress. The other impulse was a desire to
humiliate and cripple Great Britain, which object could be effectually
promoted by the establishment of the independence of the colonies. The
Count do Vergennes, French secretary for foreign affairs, represented
more distinctively the second of these impulses, though he was fully
aware of the policy, when he had determined on an alliance with the
colonies, of availing himself of the assistance of the first. When, how-
ever, Yorktown was captured, and the attitude of the British House of
Commons made peace inevitable, he felt that as to the conditions of
peace France had something to say. If America imposed conditions
«o hard as to unite Great Britain in a desperate determination to con-
tinue the war, France would be more or less involved in such hostilities;
yet to France, pea<!e, in the exhausted state of her finances, was then
important. Other considerations came in to prompt Vergennes to use
his influence to induce the United States to accede to such terms as to
lead to a speedy peace. France had claims to exclusive rights in the
IN^ewfoundland fisheries, and these claims she did not wish to see im-
periled by a treaty partition between Great Britain and the United
States. France, also, was closely bound up with Spain, and France had
no desire to see a treaty between Great Britain and the United States
which might be regarded as guaranteeing to the United States the
Floridas and the Mississippi Valley, then claimed by Spain. To this
pressure on the part of France, Congress, as the strain of war became
more severe, and the need of French aid the more apparent, was dis-
posed to yield, and it dropped its prior instructions to the commissioners
at Paris to insist on the claim to the navigation of the Mississippi.
Vergennes' advice to the commissioners unquestionably was not to let
claims to the fisheries and to the Mississippi stand in the way of peace.
But there is not a trace of evidence that he intrigued with the British
•commissioners at Paris to induce them to limit the concessions tliey
were prepared to make to the United States.

Vergennes' position, during the negotiations of 1782-^83, was at least
as difficult as that of William III in the negotiations which preceded
the peace of Byswick. Vergennes was the head of an alliance against
England which contained members at least as dissonant and with in-
terests at least as conflicting as those which William III combined in
the alliance against France, of which he was the head. If it was im-
possible for William III to conclude any treaty which would satisfy
each of the allies whom he led — if, in the peace which he actually con-
cluded, it was a matter of course that he should be accused by some
at least of the allies of undue reticence in the communication of
peace projects, or of want of fairness in the settlement of such projects,
so it was also necessaril3' the case with Vergennes. In both cases there
were the usual pledges of co-operation between the allies ; yet it must
be remembered that It is for the benefit of all the contracting parties
that such pledges are to bo liberally construed, since no negotiations
on behalf of allies could be conducted if it were understood that such
negotiations were to be always by the allies in concert, and that not a

909

§ 150.] APPENDIX.

word was to be spokea by any one of them in private conference with
the cominou enemy. SacL conferences there mast be. The; were
held, and with good results, by Portland and Boafflers prior to tlie peace
of Eyswick; they were Iield by Vergennes throngh Rayneval witli
Shelburne, and by Sbelbarne through Oswald with Franklin. It was
BO from the nature of things, and neither ally had the right to complitiii
that each merely tentative and informal conversation was not at once
reported to the other.

The only whispers that ever were uttered reflecting on VerRenneB'
loyalty in the support of American independence are given by Mr. Jay
(1 Jay's Life, 15C), bat these whispers, the original authors of vhicb
concealed tbeir names (if names they bad), are too trivial to be consid-
ered. Bat, while Vergennes' entire fidelity to the United States, so&ras
concerns the establishment of independence was concerned, must becoo'
ceded, it must also be conceded that he was not disposed to sustain the
pretensions of the United States to Canada or tbe fisheries or the
Mississippi Valley, The treaty of amity of 1778 did not bind France
to guarantee to the United States Canada or any specific boandaiyor
any fishery rights. On the other hand, France was bonnd to Spaio by
a renewed "family compact" to maintain tbo territories of Spain as
against England.

Under these circumstancea it was no breach of the treaty of amitj
for France to say to the United States, "While I will sacrifice ererj-
thing to make good your independence, I tmst you will not press yonr
claimsagainst Britain to snch an extentas to make peace impossible; that
yonwillnotembarrassmy title to the fisheries and Canada; that yon will
nothazard the alliance by a conflict on your part with Spain." No donbt
this position was taken by Vergennes early in 1782, and no doubt these
cautions were suggested to Congress by Marbois, French charge d'af-
faires at Philadelpbiaj as a cipher letter of his to Vergennes which the
British Government intercepted and put in Jay's bands shows, ^'o
doubt also Lord Shelburne knew tbrongb Bayneval that Vergennes was
not inclined to support the United States in pressing the positions above
noticed. And as stated by a late able critic, "It has now been proved
by the publication of the French dispatches which are to be fonnd in
M. de Circourt's translation of Bancroft's history that no one was more
bitterly opposed than the French ministers to the annexation of Caoada
to the United States." {Edin. Eev., April, 1880, 335.)

This disposition on the part of France, coupled with the dioppiog:
of the project by Jay and Franklin, may explain why Canada was loet
to OS. But, on the other hand, it is cWr that Lord Shelburne prefeneil
the United States at the fisheries to France, and the United States in
the Mississippi Valley to Spain. Lord Shelburne's view, as wa have .
seen, was to build up the United States into a powerful state in strict
alliance with Qreat Britain, with whom on liberal principles she conlii
control the seas, and he had no particular desire to strengthen either
French or Spanish interests in Nortli America. An early peace also
was essential to his policy, and hence he promptly sanctioned the pre-
liminaries of 1782, which made the United States tenants in commop
of the fisheries, which virtually gave the United States tLe Miseissipr>
Valley, and wLich surrendered all refugee claims for indemnity.

From the nature of things Vergennes mast have been aware, as soon
as Jay and Adams arrived in Paris and Hayneval arrived in London,
what were the terms that tbe American commissioners would offer as
an nltimatnm, and which as a necessity Shelburne would yield. It o
not necessary for this purpose to accept the following extraordinary

91.0 *

TREATY OP 1782-^83 WITH GREAT BRITAIN : VERGENNES. [§ 150.

Btatement made in the Life of Mr. Jay (Vol. 1, 155) : "Mr Jay was one
evening in conference with Mr. Oswald, when the latter, wishing to
consalt his instructions, unlocked an escritoire, when, to his astonish-
jnent and alarm, he discovered that the paper was missing. Mr. Jay
smiled and told him to give himself no concern about the document, as
he would certainly find it in its place as soon as the minister had done
with it. In a few days the prediction was verified. So fully apprised
was Mr. Jay of the artifices of the Government that while secrecy was
important he made it a rule to carry his confidential papers about his
person." This statement, it is observed, is not alleged to have been
made by Mr. Jay himself, and on its fac9 it is open to serious criticism.
Not only would Mr. Jay's "confidential papers," if we are to judge
from the papers of the same import in the Franklin collection, have been
far too bulky for him " to carry about his person ; " not only, supposing
the French court to have been as unscrupulous as he supposed, would
it have been as easy for the emissaries of the court to snatch them from
his person as it would have been for them to have broken into his lodg-
ings and extracted them from his escritoire, but Jay's communications
to Oswald, as given at large in the Shelburne papers, of which copies
are in the Department of State, are inconsistent with any such assump-
tion as that he and Oswald were at the time living under this extraor-
dinary police surveillance. Jay began his mission, as we will see when
his agency in the peace is considered, filled with defiant antagonism to
Great Britain and a desire to unite in any step by which she could be
humiliated. This, however, soon gave way to distrust of France, and a
determination,while still defying Great Britain, to do so keeping France at
arm's length. But there is not one word in his copious conversations with
Oswald — conversations of which, as reported by Oswald, his biographer
was not aware — not one word hintiug such a charge against Yergennes
as that given above; while, on the contrary, in Jay's official letters
there are constant references to the courtesy and magnanimity with
which he had been received in France.

It was not, in fact, necessary for Yergennes to set his secret service
to work to discover the conclusions of Jay and Adams. Adams appears
to have freely talked of them in Paris as soon as they were adopted ;
Jay " unreservedly explained to Mr. Oswald the views and policy of the
French court," being " no longer restrained by delicacy tqwards France
from taking the course required by the occasion." (1 Jay's Life, 144.)
Oswald, who was at least equally communicative to Bayneval, no doubc
enlightened Bayneval as to Jay's views ; and even Jay himself, on
October 24, informed Bayneval'that "we met with difficulties," and
that " we (Oswald, Jay, and Adams) could not agree about all our bound-
aries," and that " we expected" as to the fisheries, " the same rights we
had formerly enjoyed" {id., 144). All this, of course, went to Yer-
gennes, whose avowed agent Bayneval wasj and from this, as well
as from Adams' want of reticence, Yergennes must have been fully
aware, at a time when if he chose he could have eflFectively intervened,
of the claims on which the American commissioners rested. But even
if he was not so aware, he was officially advised of the preliminary
articles as soon as they were signed; and this was time enough for
France, if she chose, to break up the settlement by saying that the con-
cessions to the United States were greater than she regarded as consist-
ent either with her own interests or her obligations to Spain. She did
not do so. On the contrary, after a not unnatural complaint, as will be
hereafter seen, of the want of consideration with which she had been,
treated, she continued to make to the United States gifts and loana o\

911

§ 150.] APPEKDIX.

money wliich were uot only geuerous iu tbcmselves but of immenee
importance to the new goTernment, tben sorely in wnut of fondg. (See
infra, in notices of Franklin's part in the i}eace.)

Mr. Sparks makes tlie following statement:

" I have read in the office of foreign affairs, in Loudon, llic von-
Meutial correspondence of the British ministers with their comniis-
sioners for negotiating peace iu Paris. I have also read in the FreDch
office of foreign affairs the entire correspondence of Ije Count do
Vergennes, during the whole war, with the French ministers in this
country, developing the policy and designs of the French court in
regard to the war and the objects to be obtained by the peace. I have,
moreover, read tlie iustruetions of the Count do Vergenues, when
Bayueval went to London, and the correspondence which passed be-
tween them while he remained there, containing notes of con rersAtioni
with Lord Shelburno, on the one part, and Count de Vergennes* opinions
on the other. After examining the subject with all the care and ac-
curacy which this means of information has enabled me to give to it,
I am prepared to express my opinion that Mr. Jay was mistaken both
in regard to tho aims of the French court and the plans pursued bj
them to gala their supposed ends." [8 Dip. (Jorr. Am. Kev,, 209.)

It is true, aa Mr. Bigelow (3 Life of Franklin, 210) says, that by a
secret compact of April 12, 1779 (not 1799, as printed), between Franee
and Spain, France engaged not to conclude |)eace until Gibraltar vas
surrendered to Spain. It is true, also, that Vergennes, during the ne-
gotiations of 1782-'83 between the United States and Great Britain,
instructed both Luzerne, at Philadelphia, and liayneval, at London,
that France was not prepared to sustain the claim of the United States
to the Mississippi Valley, to the fisheries as exclusive of France, or to
Canada. But, as has been maintained above, this was when the qnes-
tion was whether France would permit peace to be sacrificed for Uese
objects. When the first two of them were tnuceded by Great Britaio
there was not a word of objection by France. And, as has been seen,
France continued, after the provisional articles were signed, aa unflinch-
ing in support of the United States, as recognized by those articles, a
she had been during the war of independence. And so far from Ilien
being any " intrigue " on the part of Vergennes to secretly thwart the
American policy of territorial extension north and south, he avowedly
directed bis'representatives in Philadelphia to represent to Congien
(I) that France herself would look forward, if the war continued, to
regain her old control of Canada and the fisheries, and that she was on-
willing to see Spain disturbed on the Mississippi, and (2) that the United
States, by asking bo much, might drive Great Britain to desperatioD,
and, by awakening again the war lever in England, wantonly protnct
the war. (See Hale's Franklin in France, 278.) France had a perfect
right to give this advice, and she gave it openly and unreservedly; and
it is greatly to her credit that when her advice was rejected, and when
the provisional treaty with Great Britain recognized the right of the
United States to the fisheries and the Mississippi Valley, Vei^nea
gave an assent without which the treaty would have failed.*

FBAI4CLn;.

Of Franklin's relations to the peace it is practicable at present to
notice only a few of the more prominent incidents.

* In this view of Vergeanes' courae Mr. Lecfcy (4 Hia. Eng., 278) concon.
91?

TREATY OF 1782-'83 WITH GREAT BRITAIN: FRANKLIN. f§ 150

It was natural that Frauklin sboald have opened himself more freely
,o Oswald than to Grenville. Oswald came first, sent by Shelburue,
ivithiu whose department the negotiation lay, and with Shelburue
b'ranklin had beeu in old times intimate, sharing his distinctive views
if political economy. Grenville came from Fox, to whom the negotia-
;ion did nofc belong, whose course had been erratic, whose views on
political economy were at least not those of Franklin, and with whom
^*anklin had no personal acquaintance. Oswalii was an elderly man,
t business man, a man, like Franklin, ^' of the people." Grenville was
>at twenty-seven years of age. a son of George Grenville, the author
»f the stamp act, and himself an inheritor of the aristocratic pride
>y which his family was distinguished. But Franklin preferred Os-
waldj not because he was (according to Mr. Allen in a statement
adopted by Sir G. G. Lewis) ^^a simple-minded, well-meaning man, on
vhom he could make the impression he chose " (Lewis, Administrations
^f Great Britain, 33), but because Oswald represented the policy of
>artition of the empire on terms of reciprocity under which both sec-
ious would have prospered as equals, whereas Grenville represented
he policy of flinging independence at once on the colonies, and then,
^hen the war was over,. and the colonies stripped of their allies, impos-
Dg on them any humiliations which the then overwhelming maritime
itrength of Great Britain might enforce.

To Franklin, Grenville appeared as an ambitious young diplomatist,
luite ready to make a sensational stroke which might be considered
insistent with the reckless and rollicking politics of the school of
roang statesmen of which Fox (the '* dear Charles" of the Grenville cor-
-espondence) was the leader. It was natural that Franklin, aside from
he question of two conflicting systems, should have preferred to nego-
iate with Oswald, an old man, with no desire to distinguish himself by
political surprises, representing a mature statesman such as Shelburue,
iirhom Franklin thoroughly knew, and on whose constancy he could
rely. And to Franklin, between the two systems— the system of set-
nng the United States adrift, to be afterwards seized and maltreated
18 it might suit British caprice, and the system of settling not merely
ndependence but all questions of difference in a comprehensive treaty
executed at a time when the United States was backed by a powerful
Baropean coalition, when peace was a necessity to Great Britain — be-
tween two such systems, the first that of Fox and Grenville; the second
:hat of Shelburue and Oswald, there was really no choice.

Had Franklin been left to manage in his own way the negotiation
sirith Shelburue, the probability is that Canada would have passed to
:he United States as one of the conditions of peace. To Great Britain,
it least, the cession would have been of benefit. She had won Canada,
n a large measure by the aid of the New England States, at an enor-
noas expense, with no benefit whatever to herself, and with no pros-
;)ect of future benefit. To her, viewing the question in the statesman-
ike way in which it was viewed by Shelburue and Pitt, it was far more
mportant to unite in establishing a powerful friendly state in America,
with whom she would be on terms of permanent alliance, than, by
seeping Canada, to be exposed, without profit, to constant collision
with the United States. As Shelburue was never tired of insisting,
jlreat Britain could find no fixed allies in the Northern European
cowers, and, great as was his desire for a permanent alliance with
France, he admitted that such an alliance, as Pitt subsequently found,
Pfras hopeless.

S. Mis. 162— VOL 111 58 913

§ 150.] APPENDIX.

Whnt iilly, then, remaioed f Wbo else tbaD the United States, iritli
whom Great Britain had the same language, the same literarnre, tUe
same religion, the same proad and free political traditions, the Kinie
aptitmle for shtpbailding and commerce, vhich would make ber at
-war tlic most desperate enemy Great Britain could challenge, in [iface
the xitMst efScienf, friend 1 And then it was impossible fop Slielbtiriie,
Chatlinm's devoted aid, and for Pitt, Chatham's son, to forget tbal in
one of Chatham's last speeches be had declared that America was des-
tined to exercise on England an influence malign or benigDaot, as ilie
case might be. If America should be subjugated this would be tlie
subjugation of England. If she would assert and maintain her free-
dom this would add fresh vigor to the freedom of the parent state, ir
America was to be thus free, and thus the auxiliary of the enlar^g
freedom of England ; if England was thus, not merely from otber con
diiions, but fi-om this very ^edom, left without other allies, what more
natural than that she shonld enter into a permanent alliance, basal od
liberal terms of reciprocity, with America; and, if so, how important
that all causes of irritation should be removed, and that America
should be made a powerful etate. Such, at least, we may conceire to
have been the reasoning of Shelbnrne and Pitt as they listened with-
out dissent to Oswald's arguments for the cession of Canada. Tbm t»
Franklin, who was equally with Shelbnrne and Pitt » holder of Adam
Smith's distinctive views, this project of the cession of Canada ap
))eared to be of supreme importance, his papers show. But iiuder
Fox's assaults Shelbnrne lo.<4t, at the critical moment, the [loneraf
acceding tu such a cession, and in pressing it Franklin was hatii|ier«d
in his own councils. Jay gave him no aid ; Adams, while insisting on
tlK fisheries as a sine qua, non, was silent as to Cauadii, which voaH
have carried with it the control of the fishery coast and excluded all fo
ture territorial conflict with Great Britain. And Vergeuues, who looted
forward to the recovery of Canada, aud to exclusive rights to the isht
ries, naturally set himself against Franklin's claim to Cauada.

From what wo can learn from Fraublin's notes we may conceive him
to have argued that Camida as a British colony, invested with tbal
power of self-guvernmeut which, after the experience of the Ameriom
Bevolntion, could not be refused, would be a constant menace totlie
peace of the world aud a constant drag on British prosperity. Con-
tributing nothing to British income, she would be able to exercise the
function of excluding British produce from her ports. She conldfw«
herself, therefore, from the expenses of the empire while she woaldini
pose on the empire the burden of largely increasing its militaiyand
naval expenditure for ber defense. She would be able, at any time,
by acts of aggression, such as she would not attempt if she were an in-
dependent aud, responsible i>ower, to involve the empire in war; and
yet the empire would have no power to restrain her &om committing
such acts or from taxing exix>rts from the sovereign who waa tbns
made responsible for ber caprices, lu this way Canada, as thns recon-
stituted, could not be otherwise than a constant peril and discomfort
even to Great Britain. Place her iu the American Dnion, so ffema.T
conceive Franklin to continue to argue, and not only will her o'<i
grandeur be vastly increased by being introduced into a system of sov-
ereignties Iwnnd together in absolute reciprocity of trade, and removed
by this union tVom all the burdens and dangers incident to a close con-
nection with European politics, but aa part of a great Xorth American
confederacy subject«d in foreign affairs to a Federal head, with no |i*
914

TREATY OF 1782-'83 WITH GREAT BRITAIN: FRANKLIN. [§ 150

lilies of territorial collision with Great Britain, she woald contribute
mild up on this side of the Atlantic an empire, in its main points of
stitutional liberalism sympathizing with Great BritlEiin, with which
at Britain would be forever at peace. It is worthy of notice that
n Adams, when in Holland, took in snbstance the same position,
ling that between the United States and Great Britain it was es-
bial to a permanent pacification that Canada should be ceded to the
ted States. But in the hurry of the final negotiations in Paris ifi
2, embarrassed as he was by the strained relations which he had
ked himself into with both France and England, and absorbed by

provincial interest in the fisheries, it is not surprising that he
aid have forgotten Canada,
ir G. C. Lewis, in maintaining that Lord Shelburne never absented to

cession of Canada as recommended by both Franklin and Oswald,
es on a certain memorandum found among the Shelburne papers, in
cb the objections to the cession of Canada are given. But it does
appear that this memorandum is anything more than a mere jotting
rn of points to be used in a contingency that did not occur. It is
lain that Shelburne informed Franklin that Oswald represented hi§
elburue's) entire mind ; that Oswald received from Franklin a spe-
3 proposal for the cession of Canada, and that this proposal, on the

of Oswald's return to Paris for the purpose of communicating to
i.nklin Shelburne's views, was received by Shelburne without dissent.
Wj in view of Shelburne's position that it was important that the
ited States should become a leading power, in constant alliance based
common interests with Great Britain, was it strange that he should
re been not insensible to Oswald's arguments that Canada, as a Brit-
dei)endency, would be a constant source of difficulty with the United
tes, without adding anything whatever to British strength f Eea-
lug as Shelburne would have done under the circumstances, the
bability is that if the cession of Canada had been pressed, and in
t as a basis for refugee relief, he would, with his usual fearlessness,
*e agreed to such cession. Nor is it likely that this settlement
aid bave been resisted by George III, who then cared nothing for
lada, but whose heart was set on indemnity to the refugees,
i'ranklin's sympathies, as between England and France, were much
r^^ussed by his colleagues, and have been much discussed subse-
^ntly. Adams and Jay, as we will see, at first thought he was ready
^peak too deferentially to England, and then that he was disposed

much to smooth over mattes with France. The truth was that
ile his colleagues were ready to say rough things to both France and
orland, he was ready to say rough things to neither. And so far as
ceriis his personal relations, his past is to be considered. He un-
ibtedly had been much flattered in France, and pleasantly ac-
ted the courtesies which were part of this flattery. But this
tery, it must be remembered, came not from the Government
. rather from philosophical iUuminati who had nothing in common
h the Government, or from political enthusiasts, like Lafayette,

0 took up^the American cause, not, as did Vergennes, as a means of

1 ess ibr injuries inflicted on France by England, but from a love of
?rty and of revolution which Vergennes abhorred. There is nothing,
act, in the way of extraordinary personal compliment from the French
vernment to Franklin to be found among his papers, generous as
i the aid they contributed through him to his country. On the other
id, it is questionable whether there is an instance in history of homage
d to the emissary of revolted and still belligerent subjects such as

916

§ 150.] APPENDIX.

that paid by three successive British admiDi»' ratioits to FraDklin. Foi.
secretary of foreigo afl^irs, sent to him Greiiville with a letter of
JDtrodactioii coached in terms of singular conoiiiutiou. Shelbnnw
sent to him Oswald, on the gronnd that Osvald bad large Americaa
interests, and held the same views on politioAl economy as Franklin;
while Franklin was informed that the cabinet was agreed that if an-
other negotiator woald be more acceptable to Franklin, such negotiaUr
should be sent. When Shelbume succeeded Rockingham, Oswald ww
continued at his post, with letters from Shelborne and from Ibouw
Townshend (who followed Shelbnrne in charge of the colonies) exprw*-
ive, with constantly increasing earnestness, of the hope that Oswald
would succeed in winning Franklin's confidence. And when the coali
tion ministry came in. instead, as might have been expected froin ihe
fact that they mounted into power by repudiating the peace, of up-
setting it, they sent to Paris David Hartley, an intimat« friend of
Franklin, to say that they accepted the preliminaries as the tennit of a
definite peace, intimating that, in order to assure Franklin of their m-
cerity, they had given plenipotentiary powers for the purpose to one with
.whom he was known to have been associated by the tenderest ties. If
Franklin retained bitter animosities towards England in consequence
of the insults heaped on him by Wedderburn in the privy conncil, oi of
the vituperation which had afterwards twen poureti on htm by the Brit-
ish press, certainly time, old age, and a temper on his part naturally be-
nignant, coupled with such Extraordinary attentions from ministries
representing the British King, would have soothed such animosities.

Bnt it cannot be said, after an inspection of his papers, that these an-
mosities swayed his conrse. He undoubtedly remembered that, not man;
months before, Lord Stormout, British ministor at Paris, had said, in
reply to a respectful commnnication from the American commissionen,
that he would receive from rebels no communication unless in terms of
surrender. He undoubtedlyalsoremembere<l the cruelties by which tbe
British arms in America had been stained; the employment of Hessians
in a mere mercenary warfare; the instigation of atrocious Indian on-
slaughts. He could not have forgotten that the war had been pro-
tracted by the false information and the inflammatory appeals with which
the refugees in England had filled the ears of those in power, Heoonld
not have forgotten any of these conditions, yet they appear to have re-
ceded from his eyes with the single exception of the conduct of the ref-
ugees, as a class — conduct which he thought disbarred them from any
claim for indemnity from the United States. And on this topic he ex-
pressed himself with far more tenderness than did Jay, who declved
that some at least of the refugees "have far outstripped savages in per-
fidy and cruelty" (1 Jay's Life, 162), and who in such cases jastiM
confiscation, if not more condign punishment. But Franklin, while thm
looking on the refugees as among the main causes of the obstiiiac; wilb
which the war was persisted in, and as continual industrious fomented
in England of animosity to the United States, found nevenbeleM in
England friends not only the most cherished but most sympathetic
with him in those views of political economy he held to so tenaciously.
And with all his just gratitude to France, there is no doubt that inlT£
he looked forward to a permanent allianoe between the United 9tat^
and Great Britain as affording, when based on sound economical princi-
ples, the prospects of greater benefit to the United States and to mankind
in general than would be such an alliance with any other power. If, i"
Franklin's letters subsequent to the final determination of the peace, be
speaks bitterly of probable British aggression, it must be rememborel
916

TREATY OF 1782-'83 WITH GREAT BRITAIN: FRANKLIN. [§ 150.

that these letters were written after the defeat of Pitt's reciprocity bill^
and after the issne by Fox and Korth of the order in council, whose nox-
ions and insolent injnstice to the United States has been already dilated
on.

Franklin's relations to Yergennes, in respect to the separation of the
two lines of peace negotiations in Paris in 1782, have been already par-
tially noticed when considering the position of Yergennes. It is now to
be observed that Franklin, thongh dissenting from his colleagues on
the question of official conference with Yergennes as to the negotiations
with Great Britain, and though conscious that such want of conference
was in violation of their common iijstructions, nevertheless kept silence,
ceasing to inform Yergennes as to the progress of the negotiations. It
mast, however, have been with no little pain that he received the fol-
lowing note, of December 15, 1782, from Yergennes:

*^ I am at a loss, sir, to explain your conduct and that of your col-
leagues on this occasion. You have conducted your preliminary arti-
deB without any communication between us, although the instructions
from Congress prescribe that nothing shall be done without the par-
ticipation of the King. You are about to hold out a certain hope of
peace in America without even informing yourself on the state of the
negotiations on our part. You are wise and discreet, sir ; you perfectly
understand what is due to propriety ; you have all your life performed
your duties. I pray you to consider how you propose to fulfill those
which are due to the King. I am not desirous of enlarging these reflec-
tions. I commit them to your own integrity. When you shall be pleased
to relieve my uncertainty I will entreat the King to enable me to an-
swer your demands."

It is due to Franklin to say that, so far from throwing the discourtesy
on his colleagues, he generously took the whole burden on himself. ^' I
received," he said, *' the letter your excellency did me the honor of writ-
ing to me on the 15th instant. • • • Nothing has been agreed in the
preliminaries coutrary to the interests of Frauce ; and no peace is to take
place between us and England till you have concluded yours. Your ob-
servation, however, is apparently just ; that, in not consulting you before
they were signed, we have been guilty of neglecting a point of biensiance.
But as this was not from waut of respect to the Kiug, whom we all love
and honor, we hope it will be excused, and that the great work which has
hitherto been so happily conducted, is so nearly brought to perfection,
and is so glorious to his reign, will not be ruined by a single indiscre-
tion of ours. And cert^ainly the whole edifice sinks to the ground im-
mediately if you refuse on that account to give us any further assist-
ance." (Franklin to Yergennes, December 19, 1782.)

The attitude of Yergennes, after this correspondence, is exhibited in
detail in a very interesting letter from liim to Luaerne, French minister
in the United States, as given by Mr. Bigelow in full in his Life of
Franklin, III, 207. In this letter Yergennes, after saying *'you will
surely be gratified, as well as myself, with the very extensive advan-
tages which our allies, the Americans, are to receive from the peace,"
goes on to express his grief at the discourtesy shown him by the American
commissioners : ^' I have informed you that the Kiug did not seek to in-
fluence the negotiation any further than his offices might be necessary
to his friends. The American commissioners will not say I have inter-
fered, and much less that I have wearied them with my curiosity. They
have cautiously kept themselves at a distance from me. Mr. Adams,
one of tbem, coming from Holland, where he had been received and
served by our ambassador^ had been in Paris nearly three weeks with-

917

§ 160.] APPENDIX.

out imagining that he owed rae any mark of attention ; and probably
I should not hare seen him till this time if I had not caused bim to
be reminded of it. • • • There is no essential difficulty at present
between France and England ; but the King has been resolved that all
his allies should be satisfied, being determined to coniinue thewar,
whatever advantage may be offered to him, if England is disposed to
wrong any one of them. • * * i accuse no person ; I blame no one,
not even Dr. Franklin. He has yielded too easily to the bias of his col-
leagues, who do not pretend to recognize the rules of courtesy in re;;ar(l
to us."

But Vergennfis's dissatisfaction djd not operate, as we have seen, to
suspend the kind offices of France to the United States. On December
23 Franklin writes to Robert Morris, as follows :

'' When I wrote to you on the 14th I expected to have dispatcheiUhe
Washington immediately, though without any money. A little misun-
derstanding prevented it. That was, after some time, got over, and on
Friday last an order was given to furnish me 600,000 livres imiiiediatelT
to send in that ship ; and I was answered by the Count de Vergenne^
that the rest of the 6,000,000 should be paid us quarterly in the course
of the year 1783.''

In Franklin's letter of July 22, 1783, to Robert R. Livingston, Secre-
tary for Foreign Affairs, the question is thus reviewed :

" I will not now take it upon me to justify the apparent reserve re-
specting this court (of France) at the signature, which you disapprote.
We have touched upon it in our general letter. I do not see, however,
that they have much reason to complain of that transaction. Nothing
was stipulated to their prejudice, and none of the stipulations were to
have force but by a subsequent act of their o\^n. I suppose, indeed,
that they have not complained of it, or you would have sent us a copy
of the complaint that we might have answered it. I long since satintied
the Count de Vergennes about it here."

It was a final movement of Franklin, also, in the same line, that on
Friday, November 28, brought the British commissioners to signatnre
of the preliminaries. They were still urging compensation to the refn-
gees when Franklin said: " If another messenger is to be sent to Lon-
don he ought to carry something more respecting a compensation to
the sufferers in America." He then drew the following "draft article'^
from his pocket: "Itis agreed that His Britannic Majesty will earnestly
recommend it to his Parliament to provide for and to make compensation
to the merchants and shopkeepers of Boston whose goods and merttban-
dise were seized and taken out of their stores, warehouses, and sbops
by order of General Gage and of his commanders and officers there;
and also to the inhabitants of Philadelphia for the goods taken away
by his army there; and to make compensation, also, for the tobacco,
rice, indigo, and negroes, etc., seized and carried off by his armies under
Generals Arnold, Cornwallis, and others, from the States of Virginia^
North and South Carolina, and Georgia, and also for all vessels and
cargoesbelongingtotheinhabitantsofthesaid United States which were
stopped, seized, or taken, either in the ports or on the seas, by his Gov-
ernment, or by his ships of war, before the declaration of war against
the said States. And it is. further agreed that His Britannic Majesty
will also earnestly recommend it to his Parliament to make contpensa-
tion for all the towns, villages, and farms burnt and destroyetl by bi*
troops or adherents in the said United States." This was the last
stroke which concluded the treaty, and it was so from the necessity of
the case, since tVieo^V^ «OL«^«t '^wsX^Vw^^Xi^woL^* t^vival of the bu^

918

TREATY OF 1782-'83 WITH GREAT BRITAIN: FRANKLIN. [§ 150,

gestion of ceding Canada to the United States as a fund from which
spoliations in America could be made good and refugees in England
could be pensioned. For this, however, it seemed to be then too
late ; and, after retiring for a short time, Oswald stated that he was
advised by Fitzherbert and Strachey to sign the preliminaries. They
were accordingly signed by him.* ,

How little Franklin was swayed by French influence is shown by the
fact that, though he was aware that France desired to reconquer Can-
ada and the fisheries lor herself, and was opposed to encroachments by
the United States on Spanish America, and although he was aware,
also, that the French envoys in Philadelphia were, under Vergennes'
instructions, endeavoring to induce Congress to take ground at least
not antagonistic to their views, he did his best to obtain, in his nego-
tiations with England, not merely the Mississippi Valleyj but ("anada.
This course he followed with Vergennes' full knowledge; nor, as far as
we can learn from the papers, was there caused by this conflict of pur-
pose the least check to their friendly relations. If Franklin's zeal for
the fisheries was less conspicuous than that of Adams, it was because
Franklin was of the opinion that the fisheries, without Canada, would
cost, in the protection required for them, almost as much as they weie
worth, and would, as has been said, be the constant source of embroil-
ment with Great Britain.

When Franklin's character as a diplomatist is considered, it must be
remembered that to him we owe two treaties, that with France of 1778,
and with Great Britain of 1782-'83, which are at once the most beneficial
and the most widely and continuously effective of any which are re-
corded in history ; and that these treaties were negotiated by him with
colleagues at his side who at least gave him no help, and with no pow-
erful sovereign 'to back him; himself a plain man, with no diploma-
tic training, adopting neither in conversation nor in correspondence
the formulas of diplomatic science. Yet nowhere in the annals of diplo-
macy do we find documents so admirably adapted to their object, in
Bimplicity and power of style, in political skill, in dexterity and force
of argument, as those which during his Paris service sprung from his
pen; nowhere such extraordinary results. The ablest of our older
negotiators, next to Franklin, was Gallatin; yet it is impossible to
examine Gallatin's dispatches during the negotiations of 18I4-'15, and
of 1818 without seeing how far he falls behind Franklin, at least in re-
sult, if not in style. Conspicuous diplomatists were at the congress of
Vienna — Talleyrand, Metternich, Castlereagh, Nesselrode. Yet the
treaties they drew were in a few years torn to tatters, and, when they
were still in force, were conspicuous chiefly for their perfidious denial
to the peoples of Europe of liberties their sovereigns had previously
pledged. Canning had great abilities as a seci^etary for foreign affairs,
yet in his boast that he called a new world into existence to restore the
equipoise of the old, he claimed what belonged to Franklin, for it was
Franklin, who, in obtaining from all the legitimate sovereigns of Europe
the recognition of a republic in the new world which had revolted from
one of them, made it possible for this equipoise to be restored. But

•The memoirs of Governor Hatcliiusoii show how pernicious was the personal in-
fluence brought to bear by him and other refuj^ees on George II [. The foliowint; note
from Georte III to Lord North dated I July, 1774, is one of the illustrations of the way
in which this influence worked: "Ju?»t seen Mr. Hutchinson, late governor of Mas-
sachusetts*, and am jww well convincei f/i€»/ w^U submt. Ho owus the Boston port bill
to have been the only wise and etfectual method." (Brougham's Ftatesmeu. &-c., I,
85.) For Hutchiusou's report of this couversati'^u, see 1 Diary, &c., of Th. Hucchi -
aon, 157.

§ 150. J APPENDIX.

Franklin did more than this. By the treaties he negotiated with France
and England not only was a liberal revolutionary erovemment in the
new world for the firet time sanctioned by the legitimate sorereips
of Europe, but the United States^ with boundaries sufficient to make a
first-class power, was able, before her national spirit and love of liberty
had been subjected to the strain which would have been imposed by a
further continuance of war, to establish a government both free and
constitutional. And of all treaties that have ever been negotiated,
that of 1782-'S3 is the one, as we have seen, which has produced the
greatest blessings to both contracting parties, has been of the greatest
benefit to civilization as a whole, and has been least affected by the flow
of time.*

What were the qualities which enabled Franklin to effect these great
diplomatic triumphst

These qualities may be summed up as follows :

Determination to make the United States not only an independent
but a leading power;

Unrivaled knowledge of the jiolitical, social, and physical condition
not only of the United States but of England and France ;

A mind fully conversant with modem political economy ;

Great sagacity in devising means to eft'ect ends;

So keen a perception of those with whom he had to deal as to be able
to say what he had to say so as best to win their assent; t

A knowledge of human nature which enabled him to judge with com-
parative accuracy of the probable action of men in masses;

A scientific, literaiy, and political reputation which made him the
object of great attention wherever he went, particularly in Paris, where,
unspoilt by adulation, he was the object of almost universal homage ;t

Singular pointedness and felicity of illustration, an unrivaled power
of terse political and economical expression, and a style, in his native
tongue, of rare felicity, purity, and force;

*Mr. Locky ^oea farther : '^ It is impossible not to be struck with the skill, hardihoo^
and gouil lorume that marked the American negotiations. Everything the United
State!) could with any shade of plausibility demand from England they mitaioed, and
much of what they obtained was granted them in opposition to the two great poven
by whose assistance they had triumphed."— 4 Lecky, Hist. Eng., ii8i (Am. ed.).

*t To the homely grace and skillful persuasiveness of his style the greatest critics
have paid tribute. Jeffrey, in an elaborate review devoted to him, places him fore-
most amon^ the masters of political and social reasoning. By Matthew Arnold heii
spoken of, m at least a literary sense, as <' the most considerable man that Ameriei
has bitherto produced.'' And a late dispassionate and acute critic declares that ^'in
France be accomplished as much against England as clid Washington with sll lui
victories.''— Edinb. Rev., April, 1880, 328.

X '^Franklin continued to keep the American cause steadily before the public eye.
His venerable aspect, his homely sayings, his republican simplicity of dress andmM'
ner, combined with the French tact*^ and politeness of bis deportment, his anecdotes
and bis bona motSf gained him among all classes admirers, disciples, and friends. Poet-
asters wrote rbymes in his honor ; noble ladies celebrated his greatness in indifferent
verses ; his portrait was seen in every print-shop ; his bust was placed in the Roy>i
Library. One day he was the observed of all observers at the famous Madame da
Less^'s ; on another Madame d'Houdetot had him plant a tree of freedom in ber gar-
den ; on a third ladies crowned his snow-white head with flowers. ' No msn in
Paris,' says Madame Vig^e Lebrun, * was more d la modej more sought after, tbiB
was Dr. Franklin. The cibwd used to run after him in the walks and in thepnblie
resorts ; hats, canes, snuff-boxes, everything was d la Franklin, Men and iroma
considered it a piece of good fortune to be invited to a dinner at which this oelebnteo
man was to be present.' The Abb6 Morellet wrote a chanson to celebrate his viitneis

" 'Notre Beiyamin :
'"En politique il est grand ;
" ' A table est Joyenz et franc' "
Rosenthal, America and France, pp. 70-73.

020

TREATY OF 1782-'83 WITH GREAT BRITAIN: FRANKLIN. [§ 150.

Great patience and courtesy; never permitting himself to be harried;
if unable to effect at once the impressions he desired^ waiting calmly
till time came to his aid.*

It was objected to Franklin in his earlier days that he was given to
sharp practice to effect his ends ; and the obtaining the Hutchinson
papers has been often cited as an illustration of this sharp practice.
Yet that he was concerned in any surreptitious procuring of these pa-
pers has never been shown ; and to forward them, when handed to him,
to his Massachusetts constituents, so far from being wrong in him, was
his duty. But whatever may have been his early reputation for " sly-
ness," it was not chargeable to him in his mission to France. Whether
it was that he had learned how much more effective in diplomacy are
simplicity and straightforwardness than chicanery, or whether it was
in obedience to the law, so prevalent with men of large capacity as
they grow older, that —

''The old man clogs the earlier years,
And simple Ghildhood comes the last/'

certain it is that there is no trace of finesse or double dealing on his
part in his voluminous Paris papers. It is true that in arguments with
his colleagues he was silent when he found that for him to speak would
be useless ; but his great strength in his dealings with Yergennes and
with Shelbutne arose from the fact that what he said could be relied
on a« true.

The charge of opportunism also has been made against Franklin,
it being alleged that he was a statesman of policy and not of principle.
Undoubtedly one of his most famous maxims, if read in one way,
would seem to make honesty a duty because it is politic; but it must be
remembered that it is also susceptible of the same meaning as are the
claims so frequently put forth by moralists, that morality is divinely
imposed because in the long run, such is Its adaptation to human nature,
it succeeds. But be this as it may, Franklin was not an opportunist,
if by opportunism is meant subjection of principle to immediate local
interest. In several matters he maintained what he held to be the
right principle against the immediate policy of the United States. He
strenuously objected to privateering, and this against not merely the
prevalent sentiment, but the unquestionable policy of the United States.
He opposed a navigation law, at a time when the temper of the people
of the United States was roused to bitter retaliation by the order of
council issued by the coalition ministry. He resisted the Fox scheme of
recognition of independence as an insulated act, popular as that scheme
was in the United States. And against the tenor of home advices,

* Franklin's colleagues objected to his negligence both in diplomacy and in busi
seas. He spent his evenings, they said, at o inner parties; a largo part of his work
was done in informal conversatioos; his letters, while unquestionably skillfnl and
eflfective, were not written in diplomatic form ; while they were marked by def-
erential persuasiveness, they were destitute of that proud defiance which should
distinguish the utterances of the representative of a sovereign state. As to Frank-
lin's dinner parties, about which so much was said, it may be remarked that, when in
hiB own house, they were admitted to be simple though liberal; and, while he dined
oat frequently among public men, it was by this kind of intercourse that his mission
was effectively served. The style and success of his letters are the best proof of
their merit. Had he indulged in such defiance as Jay hurled at Oswald at their first
interview, and Adams at Yergennes in the letter which suspended their intercourse,
the United States might have been then left without any dinlomatio relations what-
soever. And as to Franklin's management of the complicated business duties thrown
on him by Congress, it is enough to say that while raisins and forwarding immense
sums of money for the revolutionary cause, he accounted for all that he received;
and, with every opportunity of speculating in the funds, no suspicion of speculation
6Ter xested on him, and he went back home poorer than when he went abroad.

921

§ 150.] APPENDIX.

»Dd in antagonism to France by ivhose political atmospbere lie ira.s«ar.
roamled, he insisted on tlie liile of the United States to the Mississippi.

It may not be out of place, in view of tiie correspondence in refereoce
to diplomatic costnme notice<1 iu a lormer volume (vol. i, jlOTb), lo
tOQcb, for a foment, on tbe moot questioa of Fraukliu's treaty coat. Id
Wilberforce's diary, edited by hi.s sona, is tbe follotrin^ : ■■ Friday 'xml
St. Helena" (formerly Mr. Fitzherbert) "dined witb me (eVe d-f*fa: plea*.
ant day ; free conversation, macb politics, and iati>rmation. Fiant-
lin signed the peace of Paris in his old spotted velvet coat (it being Ibe
time of a court monming, which rendered it more particular). ' Wbal,'
said Lord St. Helena, 'is the meaning of that coat!' 'It is tliat iuitbich
he was abused by VVedderbnrn.' " The same story was related to Lonl
Holland by Lord St. Helena, who "could not speak without imligua-
tiOD of the triumphant air with which Franklin told them he bad hid
by and preserved his coat for anch an occasion;" and a similar aecoaut
is given by Lord Mabon (o Hist, of Bug., 495, note), tlioagh the coat is
there said to be of " figured Manchester velvet." Mr, Sparks (Lifeof
Franklin, 183), noticing the version of the story as given by Lord
Brougham, in hia sketch of Wedderburn, says that tbe "coat'' wag
not BO worn and displayed ; and be cites 5lr. Wfaiteford, who wai
present, as secretary of the British aide, at the signing of the treat; o(
peace, and who says [Uentlemau'a Mag. for July, I7S5, 561) that "(his
abaurd story has no foundation but in the imagination of the iDveutor.
He Hupposes that the act of signing the peace took place at the boase
of Dr. Franklin. The fact is otherwise ; tbe conferences were held, and
the treaty signed, at the hotel of the British commissioner, where Dr.
Franklin and the other American commissioners gave their attendani^
for the purpose. Tbe court of Versailles having at that time gone ia
mourning for the death of some German prince, the doctor, of coarse,
was dreased in a suit of black cloth, and it is the recollection of the
writer of thia, and also he believes of many other people, that when the
memorable phitlippic was prouounced against Dr. Franklin in tbeprivf
council be was dressed in a suit of figured Manchester celeet."

Sir U. G. Lewis di8[H)8es of tbe matter, so far as concerns the shape
given to it by Lord Holland and Mr. Wilberforce, by showing that Lord
St. Helena was not present at Franklin's signature of the articles of
1782 or of 1783. 2tot only is there no support for the story in tbe
Franklin papers, but in itself it is highly iocredible. Franklin was
marked for his urbauity and tact, and one of the complaints msde
against him by his more impetuous colleagues was that he was dis-
posed to go too far to conciliate England in matters of form. That
such an insult should have been offered to the British pleni|>oteDti)ine8
is as inconsiatent with hia natural temi>er as it was with his policfi
which was, by the continuance of his friendly relations witb tbeMen-
Toys, to make the treaty of peace tbe precursor for a treaty of reci-
procity.

If it be alleged that Lord St. Helens' rejwrt of what he saw refers to
the treaty of 1778 with France, tbe answer ia twofold: (1) Lord St
Helens conld not have been present at the signature of that trealT,
which was virtually a declaration of war against Great Britain; i-i
all tbe traditions aa to Franklin's dress at the time negative sacbn
display as is suggested by the Wilberforce anecdote. These traditiODS
are thus summed up in Mr. Rosenthal's recent work on America atu'
France ;

" Tbe American envoys, plain in dress, dignified in bearing, irere i*-
922

TREATY OP 1782-'83 WITH GREAT BRITAIN: JAY. [§150.

ceived by Loais XVI in March, at Versailles, and the palace of the
^ Grand Monarqne' rung with the plaudits of the conrt that greeted the
representatives of the new republic. The veuerable, white-haired
Franklin, in his dark Quaker dress, with his gray hat under his arm,
his white woolen stockings, his shoes unadorned by silver buckles, ap-
peared to the courtiers in that splendid hall the enibodiment of repub-
licaji simplicity, a Lycurgus or a Solon of the eighteenth century.

** The Marquise du Deffand wrote to Horace Walpole on 22 March,
1778, as follows (tome iv, p. 33) : * M. Franklin a €t6 pr6sent6 au roi.
II ^tait accompagn^ d'une vingtaiue d'insurgents dont trois ou quatre
avaient I'uniforme. Le Franklin avait un habit de velours mordor^, des
bafi- blancs, ses cheveux 6tal6s, ses lunettes sur le nez, et un chapeau
blanc sous le bras. Ge chapeau blanc est-il le symbole de la liberty ?'"
(Kosenthal, America and France, pp. 51, 52.)

It is not likely that if Madame du Deffand thought it worth while to
dilate in detail on Franklin's dress at his court presentation in 1778,
she would have omitted to notice an item which would have appeared
80 entertaining both to herself and to Walpole as Franklin bringing
out for the occasion the old " Manchester velvet ^ suit of such conspic-
uous antecedents.

In Arthur Lee's Journal (Life by B. H. Lee, i, 403) there is also a
detailed account of the presentation of the American commissioners to
the King and court on the signature of the treaty, but no notice is taken
of dress, which would probably have been the case if Franklin's " coat "
bore 80 sensational relation to the ceremonies.

JAY.

Mr. Jay, who was associated with Dr. Franklin, Mr. Adams, and Mr.
Laurens in the commission to treat with Great Britain for peace, was,
at the time of his appointment, minister to Spain. He was then thirty-
seven years of age, and, with the energy and resolution of the Huguenot
race from which he sprang, had during the revolutionary war zealously
espoused the American cause. His feeling of indignation against Great
Britain, which had been aroused to a high pitch by atrocities he had
witnessed in New York, was not lessened during his stay in Spain, where
he industriously devoted himself to the formation of a league between
Spain, France, Holland, and the United States, not merely to achieve
American independence, but to at least for a time paralyze British
power. England was to be invaded; her navy swept from the seas:
her colonial dependencies in America torn from her, and the Unitea
States and Spain were to divide America on terms acceptable to them-
selves.

Mr. Jay reached Paris on June 23, 1782, and immediately proceeded
to visit Franklin at Passy. Shortly afterwards, together with Frank-
lin, he called on the Count d'Aranda, the Spanish ambassador ; an event
not without significance, since it was the first occasion when the Ameri-
can commissioners had been officially recognized by the diplomatic
representatives in Paris of any leading continental power. Shortly
after this visit, however, Jay was laid up by sickness, though during
this period he had occasional conferences with Franklin, who was at
that time almost incapacitated by gout and stone.

On August 7 occurred a memorable interview between Jay and Os-
wald, which Oswald reports at great length in minutes taken by him of
the same date, deposited with the Lansdowne papers, of which copies are
in the Department of State. *' He " (Mr. Jay), says Mr. Oswald, " is a

923

$ 150. J APPENDIX.

maD of good sense ; of frauk, easy, and polite mauners." After naiiug
Mr. Oswald's commissioD, Mr. Jay went on to tell Mr. Oswald that in-
dependence "oaght to Ite no part of a treaty. It onght to hare been
expressly granted by act of Parliament, and an order for all troops to be
withdrawn previous to any proposals for treaty. As that wad notdone,
thi' King, he said, ought to doit now by proclamation, and order all pr-
risoits to be evacuated, and then close the American war by a treaty.''
" By the continued enforcement of the same crnel measarefi," so Mr.
Oswald reports Mr. Jay to have said, "the minds of the people in
general all over that continent were almost entirely alienated fioa
Great Britain, so that they detested the very name of an Englisbioiu.
That it was true a number of the older peo]>le bad not forgot tbeir
former connections, and that their inclinations might still lean toward
England, bat when they were gone and the yoanger generation came
to take their place, who had never felt any of these impressions, iboat
inclinations would be sacceeded by grndge and resentment of every
kind upon reflecting on what they bad seen and their parents had gof-
fered ; that few of them bat coald recollect the loss of blood of aome
relation or other; devastation of their estates, and other misfortnoes.
On whjch occasion he ran into a detail of particnlars as annecessarj u
unpleasant here to be repeated." In reply to some attempted palliuioa
by Mr. Oswald, " Mr. Jay admitted that some blame was justly to be
impnted to the representation of the refugees and other correspondeDti,
who, he said, at least many of them, were in a particnlar manner con-
cerned, on account of their private interest to have things brought back
by any means to their original state." Mr. Jay then, according to Mr.
Oswald, went on to complain of the injustice of the terms imposed b;
England on France by the prior treaty of Paris, upon which Mr. OBirald
remarked that he thonght "it hard that in America there shoaid b«
such feelings for the conditions to which the French were bouad by i
treaty which couclnded a war so necessary tor its (America'^) pnt-
ent and future safety." "On this occasion," uommenbi Mr. Oswald, "I
could not help thinking that Mr. Jay fell below the idea I wisbed to
entertain of his candor ami impartiality regarding objects not Htrictly
American," Mr. Jay farther proceeded to insist that the acknowledg'
meni of American independence was not a sufficient equivalent to France
fOr her exertions in the war, and, aside from this, France ought to re-
tain the conquestsshe had made. " The United States," he urged, " wonid
think themselves obliged to support them (the French Government) in
their settlement with us(Qreat Britiiiu}iii general; only, at last, htsaid,
iinless unreasonable; then, indeed — and pause^l, but afterwardit weutoD
and said — France bad been very kind to them and lent them money very
liberally, &c. After enlarging on these obligations and the gratitude
they owed to France, he proceeded to S|>ain ami UoUimd and latted.
also, though in a more general way, of their alliances with them, aiwl
their great obligations to them for advance of money; and as if, bj
conditions of treaty, they could not cimclude or have i>eace with Great
Britain separately from those two powers. I did not think it right to
be over inquisitive as to their intentions regarding them, but it ajiieared
to me as if he (Mr. Jay) considered those two courts as nmcb tndw
their protection as that of France, and as if the commissioners of lb*
colonies would agree or refuse to close with as according as they should
conxider the terms which those two last powers shall insist "on tobe
reasonable or unreasonable." Of Mr. Jay Mr. Oswald proceedetoup
*' We have ■vers UUW W expect from him in the way of indalgenca,
924

TREATY OF 1782-'83 WITH GREAT BRITAIN : JAY. [§ 150.

and I may venture to say that althongb he has lived till dow as a British
sobject, thoagh he never had been to England, he may be supposed (by
anything I could perceive) as much alienated from any particular re-
gard for England as if he had never heard of it in his ifife." He was
'^ much less liberal " in his terms, so Mr. Oswald declares, than was Dr.
Franklin.

But Jay did not long continue of this mind. On November 5, 1782,
John Adams makes this entry in his diary : '< Mr. Jay likes Frenchmen
as little as Mr. Lee and Mr. Izard did. He says they are not a moral
people ; they know not what it is ; he don't like any Frenchman ; the
Marquis de Lafayette is clever, but he is a Frenchman."

Jay's sudden reaction from the distrust of and repugnance to Eng-
land, as exhibited in his first interview with Oswald, to the distrust of
and repugnance to France he subsequently displayed, may be explained
in part by the solution given by Adams, that to Jay French morals and
manners, when he became familiar with them, were intolerable. Jay's
temper, naturally grave, reserved, and austere, coupled with punctilious
conscientiousness in the discharge of duty, and a tendency to reason
not from the condition of things about him, but from high principles to
which those conditions should be forced to bend, found comparatively
little in Spain at which to revolt. There might be crime there, but it
was hidden out of sight; there was no frivolity; court life was solemn
and decorous : certainly there was no tendency to surrender political
traditions to fluctuating fashions. But it was otherwise in Paris. The
King was undoubtedly personally pure and conscientious ; there was
not in the coart the vulgarity of dissoluteness that had been dominant
under Louis XV ; but still, in the levity of the Queen, in the reckless
folly of the King's brothers, in the unconcealed depravity of some of the
chief ecclesiastics about the throne, in the ostentatious immorality of
flEMhion, there was as much to distress a pure and sensitive character
such as Jay's as there would have been in the time of Louis XV. And
there was something more which made this levity and vice the more
monstrous. In the time of Louis XV court favorites played with for-
eign wars ; with the pragmatic sanction ; with the conquest of Silesia.
But to Jay's eye these dissolute people of fashion were playing with a
volcanic revolution seething under their very feet. Then, again, their
irreligion, covered over with only a thin veneering of Catholic ritual,
was horrible to him. It took him back to the old struggles under the
Valois kings between the court and the Huguenots — all that was frivo-
lous and hollow and depraved, with the court; with the Huguenots all
that was earnest and pure and devout. As he viewed the more closely
the court and the dominant society of the capital he seemed to rise up-
wards to the level of his Huguenot ancestry, sharing their sombre
hatred of their opponents, preferring exile in America and in England
to subjection to France where these opponents ruled. Of this exalta-
tion of standpoint on Jay's part we have a remarkable illustration in
the following passage from a letter of July 19, 1783, by him to Mr. R.
B. Livingston, then Secretary of Foreign Affairs :

'^ Our Uttle one is doing well. If people in heaven see what is going
on below my ancestors must derive much pleasure from comparing the
circumstances attending the expulsion of some of them from this coun-
try with those under which my family has increased in it."

It may have been in part from this idealizing himself with that high-
toned race who, though French in origin, became, as was the case with
the Huguenot captains of William III, among the most relentless en-

§ 150.] APPENDIX.

eDiivs of France, as well asiu partfrom the aotagouistu of Lis ovu stern
aud stoical morality to the disregard of all morality which he held to be
prevalent iu Paris, that be lent a willing ear to Oswald's suggestions of
French iutrigae iu Loadon against the United States. But in ihe char-
acter of this intrigue lie was greatly mistaken, since Vergeuues, while
not desirous of seeing the United States take Canada, tiie Mtssj»>i[ipi
Valley, and the fisheries, yet nevertheless made theiudepeudeiicvoftbe
[Jnited States the one essential condition of his policy, and acqniesced
without murmur in the provisional treaty giving the United Stales the
Mississippi Valley and the fisheries, though his veto might have killed
the settlement iu which the concessions were secured. And iuto one
otbererror Jay was led by the tendency to fall back on his old traditiooa.
As a young man, on the breaking out of the war, he was ardently de-
voted to the old Whig English historical school. Of that school be and
other Wbigs in the colonies regarded Fox and Burke as the tbeu ortbodoi
exponents. Kothing could have been more natural than that hesLould
have taken up Fox's cry of independence by graut, and have iusiBted
that the United States should be solemnly recognized as iude|)l;udent
by Great Britain before she could be treated with as thus independent.
Yet such a position on its face involved a fallacy, since a dissolution of
political connection, which is essential to independence, is a hilaleral
acK and if independence based on treaty was to be rejected, then tbere
could be no acknowledgment of independence at all. And aside from
this it was only by a treaty made at the time the United Slates was
sustained on all sides by allies, and when a liberal miuistrj*, acting; on
wise economical principles, was iu power, that a pacification could bave
been efifected that would, from its beneficial relations to both parties,
have had any chance of permanency.

In this temper of disgust and distrust of France it was easy for Jaj
to convince himself that Vergennes was secretly plotting with Shel-
burne, if not to divide the colonies between France and Euglaod, at
least to rednce them to the level of a group of petty seaboard prov-
inces. And Jay claimed that he was justified in this tmspiciou by tbe
fact that Oswald's commission was addressed to the American " colonies
and plantations," and that Vergennes advised them that this was a mere
matter of form.

The very sending by Vergennes to London of Rayneval as a confi-
dential agent strengthened Jay's distrust ; for the mission of Rayneval,
so he argued, must have for ite object the prejudicing Lord Shelbnrne
against America. To counteract this supposed pernicious iutrigue, Jay.
without any notice whatever to Franklin, sent Benjamin Vaugban on
a special errand of elucidation to Shelburne. A more estraordioarT
utep could scarcely have been taken by a diplomatist so distingaisbed
for integrity and capacity as Jay. Jay and Franklin were Uie sole
members of the commissiou in Paris, Adams not having yet arrived.
Franklin, as Jay well knew, was resolute in maintaining Vergeuneii'
loyalty to the United Stat«s, so far as concerned the question of inde-
pendence | and Franklin had heretofore conducted with singular skill al'
the negotiations with Shelburne. Yet Jay, himself unacquainted vHi
Shelburne, sent to Shelburne, as a 8{>ecial envoy, Benjamin VaaebsU'
a gentleman to say the least not distiuguisbcd for prudence or diplo-
matic skill, to counteract with Shelburne tbe supposed auti-Ameneaii
intrigues of Rayneviil, one of the most subtle and seductive diplomatists
in the French service. It must have required on Shelburne's [tart great
determination to perfect the pear«, and great faith in Franklin's capa-
92G

TREATY OF 1782-'83 WITH GEEAT BRITAIN: ADAMS. [§150.

city to right matters at last, to have enabled him to disregard this
singular side action of Jay.

Yet near as were these proceedings of Jay's to imperiling the rela-
tions of the United States to both France and Great Britain, in one im-
portant respect he brought into prominence a truth which Franklin,
while cognizant of it, did not consider it necessary to proclaim. Ver-
gennes determined as he was to have the independence of the United
States established, had, as we have seen, made known that he had no
desire to see the United States retain her old rights in the fisheries, or
absorb Canada, or push Spain out of the Mississippi Valley. But that
Jay was wrong in his doubts of Vergeunes' loyalty to the cause of Amer-
icans independence is shown by the fact that after the United States
gained, not, indeed, Canada, but the fisheries and the Mississippi Valley,
France continued her support as generously and efficiently as she had
done before these causes of ditterence had arisen.* And if Franklin
appears in his correspondence to attach comparatively little consequence
to Jay's representations in this respect, we must remember that Frank-
lin, while knowing the desire of France not to offend Spain, or to impair
her own claims to the fisheries, was also aware that she would not per-
mit her preferences in this respect to stand in the way of the recognition
by Great Britain of the independence of the United States.

JOHN ADAMS.

Mr. Adams was marked by a singular combination of apparently in-
consistent characteristics which were displayed in peculiar prominence
during the peace negotiations in which he took part. His patriotism
was ardent and even tierce ; attempts to corrupt or intimidate him would
only have intensified it« fires. He was capable of bold, sudden action ;
and he could defend such action bj' oratory singularly thrilling, exhibit-
ing like lightning the path and the perils ahead, and in doing so
dazzling as well as guiding. But with these great qualities were assi>-
ciated great defects. He could recognize no one as in any respect
superior to himself. He paid but a grudging obeis ince to Washington
even when he was Washington's associate in office ; and when in Con-
gress he gave a ready ear, if not a sympathetic assent, to the expres-
sions of discontent with which Washington's war policy was sometimes
received. It is questionable whether he was ever truly conscious of the
supreme grandeur of Washington's character; at least there is nothing
in his diary or his confidential letters, from which his true views can be
best collected, from which such a consciousness can be inferred. Of
Franklin's extraordinary capacity and signal successes as a diplomatist
Le was equally unconscious; and towards Franklin he showed, when in
Congress, a dislike which, in Paris, ripened into a blind jealousy. His
vanity was so great as to make all flattery, no matter how delicate,
odious to him when offered to others, and no flattery appear to him
too gross when offered to himself. In council he could direct and

*Mr. Lecky (4 Hist. Eng., 282) says : **Two of the commissioDers had conceived a
profound distrust of the French minister. They believed that Sayneval had been
sent to England to retard or prevent the recognition of American independence, that
the French minister desired to keep America in a state of ferment and humiliating
dependence, and that they were acting falsely and treacherously towards her. Foi
this suspicion there does not appear to have been the smallest real ground. The iude-
pendeiice of the Americans had been the great aim which France had steadily pursued,
and she was not in the least disposed to abandon it; nor does Vergennes ever appeal
to have opposed American interests on any point on which he had promised to sup
port them/*

927

§ 150.] APPENDIX.

mspire, but be could not consult ; a peculiarity afterwards illostrated
during bis Presidency, wben for long periods be would let his cabinet
officers, all of tbem representing a line of politics distinct from his own,
carry out their views without their conferring with him, when sud-
denly, as in the case with the French mission of February 25, 1799,
he would proclaim a new and bold policy without his conferring
with them. His enthusiasm for public affairs in fact, splendid as
were its occasional manifestations, was not continuous, and was broken
in upon, from time to time, by parentheses of torpid seclusion, or,
what was stxanger, by social displays for which he had no tact, and
which consorted but illy with the abruptness^ the self-consciousness, and
the want of consideration for others, by which he was often marked.

Of these peculiarities of Mr. Adams we have ample illustration in
the diary left by him in 1782-'83, during his French negotiations, u
published in 1851, by his grandson, the late Mr.G. F. Adams (Works of
John Adams, vol. iii, pp. 298 ff,) Adams, after a mission to Holland,
in which, by singular energy and zeal, he had succeeded in negotiating
a treaty recognizing the independence of the United States, arrived in
Paris about noon on Saturday, October 26, 1782.

The period was one of extmme anxiety, requiring grave and prompt
action by the American commissioners. Adams' name was the first in
the list of these commissioners, and his immediate presence in Paris
had been earnestly solicited by Franklin and Jay.

Of his action on his first day in Paris, his journal narrates the fol-
lowing:

<< The first thing to be done in Paris is always to send for a tailor,
peruke-maker, and shoemaker, for this nation has established sach a
domination over the fashions tnat neither clothes, wigs, nor shoes made
in any other place will do in Paris. This is one of the ways in which
France taxes all Europe, and will tax America. It is a great branch of
the policy of the court to preserve and increase this national inflaence
over the mode, because it occasions an immense commerce between
France and all other parts of Europe. Paris furnishes the materials
and the manners, both to men and women, everywhere else."

On the next day he meets with " Ridley," apparently one of the outside
agitators by whom the commissioners were beset, who informed him that
Jay '< refused to treat with Oswald until he had a commission to treat with
the commissioners of the United States of America. Fran klin was afraid
to insist upon it." " Ridley," in a subsequent conversation, " was fall (rf'
Jay's firmness and independence; [Jay] has taken upon himself to act
without asking advice, or even communicating with the Count de Ver-
gennes, and this even in opposition to an instruction." On the same
day is the entry, "Then to Mr. Jay and Mrs. Izard; but none at borne.'*
The following ends the day's comments : " Between two as subtle spirits
as any in this world (Franklin and Jay), the one malicious, the other,!
think, honest, I shall have a delicate, a nice, a critical part to act.
Franklin's cunning will be to divide us; to this end he will provoke, he
will insinuate, he will intrigue, he will manoeuver. My curiosity will
at least be employed in observing his invention and his artifice. Jay
declares roundly that he will never set his hand to a bad peace. Con-
gress may appoint another, but he will make a good peace or nooe.^

Yet, in his journal for June 20, 1779, after speaking of Gouvemeur
Morris as *'of a character trds Uger^^ he says, and with much injustice,
so far as concerns Jay, '*.the character and cause of America has not

928

TREATY OF 1782-'83 WITH GREAT BRITAIN: ADAMS. [§ 150.

been sustained by such characters as that of Gouverueur Morris or nis
colleague, Mr. Jay."

It was not until Tuesday, October 29, in the evening, that he paid his
first visit to Franklin. At this visit, and in the interviews immediate) v
succeeding, Franklin was informed by Adams that he entirely concurred
with Jay in the points as to which Franklin and Jay differed — as to Jay's
hasty and ill-judged avowal of preference for Fox's scheme of peace to
that of Shelbnrne; as to Jay's demand on Shelburne to amend Oswald'«v
commission so as to call the thirteen States ^^the United States" before
the signature of a treaty in which Oswald was to be authorized to confer
this title ; as to Jay's singular personal confidential mission to Shelburne
without Franklin's knowledge and against Jay's instructions; as to Jay's
determination to ostentatiously impress on Yergennes the refusal of the
commissioners to formally acquaint him with the character of the nego-
tiations with Shelburne. And Adams, when Franklin took the ground
that it was not within the power of Congress to comply with Oswald's
*^ demand of the payment of debts and compensation to the tories," re-
plied that '*I had no notion of cheating anybody;" that '^ the question
of paying debts and of compensating tories were two ; " and he adds, ^' I
mstde the same observation that forenoon to Mr. Oswald and Mr.
Strachey, in company with Mr. Jay, at his house. I saw it struck Mr.
Strachey with peculiar pleasure. I saw it instantly smiling in every
line of his face. Mr. Oswald was apparently pleased with it too."
Franklin, when thus overruled by his colleagues, simply ^Mistened with
patience." He could do nothing else. His colleagues had not only
taken their positions resolutely, but declared it openly. It is true that
by their course Canada was lost, and the great scheme of partition and
reciprocity which he had woven in conference with Oswald imperiled ;
it is true, also, that the friendly relations of France and the United
States were put to a strain which it would require great skill to enable
them to bear without rupture; but his dissent would only have made
this rupture inevitable, while it could not have made the negotiations
with the English ministers any the more auspicious to the United
States. So he acquiesced; and by thus moving with his colleagues, at
least so far swayed the subsequent correspondence as to i)reveut, as wo
have seen, a rupture with France, to save the United States from any
burden of indemnity to the refugees, and to retain in the preliminary
articles most of those features which make them, of all pacifications
known to history, at once the most liberal in temper and the most
reciprocally beneficial in result.

On Adams' action, on his arrival at Paris, as above narrated, we have
a marked illustration of the tendency, common to Lord Chatham as well
as to himself, to alternate periods of intense and heroic action with pe-
riods of histrionic seclusion not without preparation for histrionic dis-
play. Adams, prior to his arrival, had been, as we have seen, actively
and efficiently engaged in the settlement of a treaty with Holland. He
was summoned to Paris to take part, as the first on the list of commi^i-
8ioners,in negotiations on which depended the independence of America
and the peace of the world. Time was of vital importance. Any de-
lay, as afterwards was shown, might bring into play events by which
the interests of America and her allies would be seriously imperilled.
Franklin alone was possessed of the threads of the pending negotia-
tions, and, whatever Adams may have thought of him, Franklin was a
man advanced in years, who was confined at that period to his chamlK^i
by an excruciating disease. Yergennes may have been the peculiar

S. Mis. 162— VOL III 59 929

§ 150.] APPENDIX.

object of Adams' dislike; but Adams was iD>tncted to take uo step
without cousultin«^ Vergennes, and on Ver^jennes de|>eiided the ques-
tion whether any treaty at all with Great Britain could be negotiated.
It was Adams' duty to at once visit both Franklin and Yergennes. So
far from performing this duty, he delayed visiting Yergenues for nearly
three weeks,* and would have delayed longer if Yergennes had not ^ne
out of tne way of diplomatic routine to good naturedly invite the visit;
while the visit to Franklin was delayed thi^ee days, until, in the meao-
time, the peruque-makers and tailors' help had been secured by way of
preparation. And then, when the visit to Franklin was at last [aid,
it was not to obtain information or take counsel, but brusquely to
announce conclusions, of which it is only necessary at this point to say
that if they had been withheld until the views of Franklin had been
heard and duly respected, it would have been far better for the United
States.

In addition to the citations already given from Adams' diary, maybe
noticed the following extracts :

"The compliment of * Monsieur, vous ^tes le Washington de lan^
goeiation,' was repeated to me by more than one person. I answered.
* Monsieur, vous me faites le plus grand honneur, et le complimeDt le
plus sublime possible.' * Et, Monsieur, en v6rit6 vous Taver bien ni^rit^.*
A few of these compliments would kill Franklin if they should come to
his ears." (3 John Adams' Works, 309.)

But as to the last point, Adams was mistaken. Franklin, in his pub-
lic course, was singularly uninfluenced by either slight or adnlatiou.
On the one hand, through the impression noticed above, that he was
unduly swayed by French preferences, he had provoked the jealousy of
Adams, of Izard, and Arthur Lee, and this, with other causes, had led
to charges, striking him at the most vital points, being preferred against
him in Congress. Yet, on the other hand, while lie was overwhelmed
in Paris, both by men of science and men and women of fashion, with an
adulation which, for its permanency and its ardor, has no parallel, he
received from the British ministry the extraordinary honor of being told
that the negotiators sent to confer with him were selected because it
was supposed they would be acceptable to himself, and that other whan-
nels would be selected if he would designate them. But it does notap-
X>ear that he ever sought to impress his colleagues either with the 8li$(bts
or the honors which had been tendered to him, nor has he even noticed
them in his diary. We now hear of them in detail from letters to hiin,
deposited in the Department of State ; and from that same correspon-
dence we learn that, without regard either to censure or flattery, lie pur-
sued the course which was imposed on him by the great responsibili-
ties under which he was placed.

It would be as unjust as it would be vain to disparage John Adams'
splendid services in the revolutionary cause. He was, as JeflFcrson well
said, the "Colossus" on whom depended, so far as oratorical effect was
concerned, the contest for independence. But the history of the treaty of
peace of 1782-'83 would not be complete without noticing the way in
which his character as a negotiator was affected by the weaknesses
which have been noticed above. It was not that his ardent devotion to
liis own country ever dimmed. It is not that he was unduly partial to
either of the great powers with whom he had to deal. '* '^ Voa are afraid/
^o he represents Oswald as saying to him, 'of being made the tool of

* As to the invitation to dinner which followed tl is visit, see 9Hpra, vol. i. ^ \0U.
Ah to Adams' overbearing treatment of Vergennes, see 4 Lecky Hist. Eog., 11KI(A».
ed.).

TREATY OF 1782-'88 WITH GREAT BRITAIN: ADAMS. [§ 150.

the powers of Europe.' 'Indeed, I am,' says I. *What powers!' said
he. ' All of them,' said 1." (3 John Adams' Works, 316.) Hence it
was that distrust of England led him to do all he could to drive off
Shelburne by his unwillingness to understand, or at least to accept,
Shelburne's liberal system of pacification, and distrust of France led
him to do all he could to break up the French alliance. He undoubt-
^ly meant to be just; but his jealousy of Franklin led him to blindly
reject Franklin's conclusions whenever they conflicted with those of Jay,
or whenever, as in respect to refugee claims, Franklin could b6 humili-
ated b3^ their rejection. He was capable of intense labor, yet, in one of
those strange fits of lassitude by which he was sometimes overtaken,
he permitted himself, on his arrival in Paris, on October 2 j, 1782, at the
most critical period of his country's history as well as of his own life,
instead of seizing at once on whatever would enable him to possess him-
self of the information necessary to judicious action, to lose himself in
matters of mere personal decoration, and then, when he sought informa^
tion, to seek it first from questionable outsiders, and then from Jay, con-
tenting himself, when at last he visited Frankin, with roughly telling
Franklin at the very outset, before Franklin had any chance for explana-
tion, that in all matters in contest he sided with Jay. It is true that in the
main he had to fall back on Franklin's outlines of peace, for there were
none others to fall back upon. Yet even here the concentrated and local-
ized character of his patriotism led him astray. He fought zealousl}^, vig-
orously, and successfully for the fisheries and for the northeast bound-
aries. Yet, in the absorption of his vision in the fisheries and on tbe
boundaries, he lost sight of Canada, without which no boundary ques-
tions could be definitely settl»^d and no fisheries could be securely enjoyed.

COHRESPONDEN CE.

To a letter from Lord Shelburne, of April C, 17S2, introducing Mr.
Oswald, Franklin, in a letter of April 18, answered in i)art as follows:

** I have conversed a good deal with Mr. Oswald, and am much pleased
with him. He appears to me a wise and honest man. 1 acquainted him
that I was commissioned with others to treat of and conclude a peace ;
that full powers were given us for that purpose, and that the Congress
promised in good faith to ratify, confirm, and cause to be faithfully
observed the treaty we should make 5 but that we could not treat separ-
ately from France; and I proposed introducing him to M. le Comte de
Vergennes, to whom I communicated your lordship's letter containing
Mr. Oswald's character as a foundation for the interview. He will
acquaint j^ou that the assurance he gave of His Britannic Majesty's good
disposition towards peace was well received and assurances returned
of the same good dispositions in His Most Christian Majesty.

" With regard to the circumstances relative to a treaty, M. de Ver-
gennes observed that the King's engagements were such that he could not
treat without the concurrence of his allies j that the treaty should there
fore be for a general, not a partial, peace ; that if the parties were dis-
l)08ed to finish the war speedily by themselves, it would perhaps be
best to treat at Paris, as an ambassador from Spain was already there,
and the commissioners from America might easily and soon be assembled
there. Or if they chose to make use of the proposed mediation, they
mif^ht treat at Vienna, but that the King was so truly willing to put a
speedy end to the war that he would agree to an^' i)lace the King of
England should think proper. I leave the rest of the conversation to be
xelated to your lordship by Mr. Oswald, and that he might do it more

^ 150.] APPENDIX.

easily and fully than he could by letter, 1 was of opinion with Lim tfiatit
would be best' he should return immediately and do it rira roce.^

Franklin MSB., Dept. of State. 9 Sparks' Franklin, 245 ; 2 Dip. Coir., 278.

" I have received much satisfaction in being assured by you that thfr
qualifications of wisdom and integrity which induced me to make choice
of Mr. Oswald as the fittest instrument for the renewal of our friendly
intercourse have also recommended him so effectually to your approba-
tion and esteem. I most heartily wish that the influence of this first
communication of our mutual sentiments may be extended to a happy
conclusion of all our public differences.

"The candor with which Monsieur le Comte de Vergennes ex-
presses His Most Ghristian Majesty's sentiments and wishes on the sub-
ject of a speedy pacification is a pleasing omen of its accomplishment*
His Majesty is "not less decided in the same sentiments and wishes, and
it confirms His Majesty's ministers in their intention to act in like man-
ner, as most consonant to the true dignity of a great nation.

<^ In consequence of these reciprocal advances Mr. Oswald is sent baclL
to Paris for the purpose of arranging and settling with you the prelim-
inaries of time and place, and I have the pleasure to tell yon that Mr.
liaurens is already discharged from those engagements, which he en-
tered into when he was admitted to bail.

^^ It is also determined that Mr. Fox, fix>m whose department that
communication is necessary to proceed, shall send a proper person, wb(^
may confer and settle immediately with Monsienrde Vergennes the fnr-
t])^r measures and proceedings which may be judged proper to adopt to-
wards advancing the prosecution of this important business. In the
mean time Mr. Oswald is instructed to communicate to you my thoaght»
upon the principal objects to be settled.

" Transports are actually preparing for the purpose of conveying yonr
prisoners to America to be there exchangeil, and we trust that yoa will
learn that due attention has not been wanting to their accommodatiou
and i^ood treatment."

Lord Shelbame to Dr. Franklin, April 28, 1782. Franklin MSS. , Dept. of State ;
9 Sparks' Franklin, 265.

'• With respect to the commissioners of the colonies, our conduct to-
wards them I think ought to be of a style somewhat different. Tbey
have shown a desire to treat and to end with us on a separate footing
from the other powers, and I must say in a more liberal way, or at least
with a greater appearance of feeling for the future interests and con-
nections of Great Britain, than I expected. I speak so from the text
of the last conversation I had with Mr. Franklin, as mentioned in my
letter of yesterday. And therefore we ought to deal with them tenderly
and as supposed conciliated friends, or at least well disposed to a con-
ciliation, and not as if we had anything to give them that we can keep
from them or that they are very anxious to have. Even Dr. Frankliu
himself, as the subject happened to lead that way, as good as told
me yesterday that they were their own masters, and seemed to make
no account of the grant of independence as a favor. I was so macb
satisfied beforehand of their ideas on that head that I will own to yoor
lordship I did not read to the Doctor that part of yonr letter wbereiu
yon mention that grant as if in some shape it challenged a retoni oii
their part. When the Doctor pointed at the object of the enabling biili.
as singly resting on a dispensation of acts of Parliament they cared not
for, I thought it enough for me to say they had been binding »ii<^

TREATY OP 1782-'83 WITH GREAT BRITAIN. [§ 150.

•

acknowledged. To which no answer was made. When the Doctor
mentioned the report as if there was an expectation of retaining the
sovereignty, I ventured a little further (though with a guarded caution)
"to touch him on the only tender side of their supposed present emanci-
pation, and said that such report was possibly owing to the imagination
•of people upon hearing of the rejoicings in America on the cessation of
war, change of ministry, &c., which they might conclude would have
fiome effect in dividing the provinces, and giving a different turn to af-
fairs ; as no doubt there was a great proportion of these people, notwith-
standing all that had happen^, who, from considerations of original
affinity, correspondence, and other circumstances, were still strongly
attaciied to England, &c. To this also there was no answer made.

''At same time I cannot but say that I was much pleased upon th6
whole with what passed on the occasion of this interview. And I
really believe the Doctor sincerely wishes for a speedy settlement, and
that after the loss of de'pendence we may lose no more ; but, on the con-
trary, that a cordial reconciliation may take place overall that country.

'^Amongst other things I was pleased at his showing a state of the
^ids they have received from France, as it looked as if he wanted I
should see the amount of their obligations to their ally ; and as if it
was the only foundation of the ties I^rance had over them, excepting
g^ratitude, which the Doctor owned in so many words. But at same
time said the debt would be punctually and easily discharged. France
having given to 1788 to pay it. The Doctor also particularly took notice
of the discharge of tEe interest to the term of the peace, which he said
was kind and generous. It is possible I may make a wrong estima^ of
the situation of this American business, and of the chance of d total or
partial recovery being desperate. In that case my opinion will have no
freight, and so will do no hurt, yet in my present sentiments I cannot
help offering it as thinking that circumstances are in that situation that
I heartily wish we were done with these people, and as quickly as possi-
ble, since we have much to fear from them in case of their taking the
pet, and throwing themselves into more close connection with this court
«nd our other enemies."

Richard Oswald to Lord Shelbame, July ll, 1782 ; 9 Sparks' Fraukliu, 303, note.

In a draft of a note to Mr. Oswald, July 12, 1782 (Frank. M8S., Dept.
of State; 9 Sparks' Franklin, 365; 2 Dip. Corr., 351), Dr. Franklin
states that he had received a* note from Mr. Orenville stating that
Lord Shelburne's opposition to an immediate acknowledgment of
^'American independency" was thepanseof Mr. Fox's resignation ; and
that this would **be fatal to the present negotiation." But Dr. Frank-
lin evidently did not think that this would follow, and, though he says
that an acknowledgment of independence is essential, yet he implies
that this can be done as a preliminary to a treaty.

Passy, July 18, 1782.
Earl of Shelbubne :

My Lobd : Mr. Oswald informing me that he is about to dispatch a
courier, 1 embracf the opportunity of congratulating your lordship
on your appointment to the treasury. It is an extension of your power
to do good, and in that view, if in no other, it must increase your happi-
mess, which I heartily wish, being with great and sincere respect.

My Lord, your Lordship's most obedient and humble servant.

B. FEANKLlNc

Frniiklin MSS., Dept. of State.

033

§ 150.] APPENDIX.

<^ I expected to hare had the honor to transmit you herewith tbe
King's commission aathorizing you to treat and conclude a ])eace vith
the American commissioners at Paris, as well as His Majesty's iDstruc-
tions consequent to it. But from the length of time necessary to pasa
the commission, I have thought it necessary to forward this to yoa
without waiting for it. From the opinion which I have had very good
reason to conceive of your ability I have no doubt but that yon will ac-
quit yourself, both as to spirit and form, to the satisfaction of His Ma-
jesty in this important business.

'^ As my intention is, and ever will be, in the high office which I bave
the honor to hold, to conduct my correspondence with the utmost pre-
cision and perspicuity, I desire you will without reserve communicate
to me any doubts that may arise upon your instructions or any diffi-
culty that may occur in the course of your negotiation. Be assured
you will ever find me ready to pay due attention to your opinions upon
the arduous undertaking in which you are engaged, and to commani-
cate to you His Majesty's pleasure thereupon,

"I think it necessary to acquaint you that Mr. Fitzherbert, now at
Brussels, has orders to join you at Paris to replace Mr. Grenville. I
have great pleasure in recommending him to your confidence, as he is
a person of whose talents and discretion I have the highest opiniou
founded in a long acquaintance. Of those with whom you are to treat
I have no knowledge of any except Dr. Franklin. My knowledge of
him is of long standing, though of no great degree of intimacy. I
am not vain enough to suppose that smy public conduct or principles
of mine should have attracted much of his notice. But I believe lie
kn<^s enough of them to be persuaded that no one has been more
averse to the carrying ou this unhappy contest or a more sincere friend
to peace and reconciliation than myself. If he does me the justice to
believe the sentiments to be sincere he will be convinced that I sball
show myself in the transaction of this business an unequivocal and
zealous friend to pacification upon the fairest and most liberal terms.
Though I have not the pleasure of a personal acquaintance with you,
sir, your character is not unknown to me, and from that I derive great
satisfaction in seeing this very important negotiation in your hands.

<< When the commission is made out yon will hear from me again.
and receive at the same time His Majesty's instructions for the execu-
tion of it.^

Thomas Townshend to Bichard Oswald, Jaly 26, 1782 ; FraokliD MSS., Dept. of
State ; printed in part in 9 Sparks' Franklin, 366, note.

''In regard to the question of any national substitution for tbe de-
pendent connection with Great Britain, you must, in the first place, sevk
to discover the dispositi< ns and intentions of the colonies b.y the iu-
timations and propositions of the commissioners ; and if it shail apiiear
to you to be impossible t /form with them any political league of auion
or amity to the exclusion of other European powers, you will be partic-
ularly earnest in your attention and arguments to prevent their biodin^
themselves under any engagement inconsistent with the plan of (U^wlute
and universal independence, which is the indispensable condition of onr
acknowledging their independence on our crown and kingdoms.-'

Orders and instrnctions to Richard Oswald, July 31, 1782 ; Franklin MSS., Dept.
of State.

"I went out this forenoon to Dr. Franklin to know whether he was
inclined to enter upon business. He told me he had carried tbe copy

934

TREATY OF 1782-'83 WITH GREAT BRITAIN. [§ 150.

of the commissiou I gave him to Versailles the day before, and had
fc^ODie conversation on the subject with Monsr. de Vergennes, who was
of opinion with hioi that it woald be better to wait until a real commis-
sion arrived, this being neither signed nor sealed, and could be sup-
posed as only a draft or order in which there might be alterations, as
in the preamble it said only < to the effect following, &c.' To this ob-
jection I ha^l nothing to say, as I did not incline to show them the in-
structions, though signed and sealed.

^' Finding no alteration in the Doctor's manner, from the usual good-
natured friendly way in which he had formerly behaved to me (as I had
reason to apprehend from what had lately passed with his colleague)^
and having a quiet and convenient opportunity, I was anxious to learn
i«-hether the Doctor entertained those ideas, which, in the preceding pa-
pers, 1 suspected Mr. Jay had in view regarding the means of prevent-
ing future wars, by settling the peace in such a manner as it should not
be the inierestof the parties to break it.

*' With that intent I told the Doctor I had had a long conversation
with Mr. Jay, of which no doubt he had been informed, and in which
he had not spared us in his reflections on what had passed in the
American war ; and that I could not but be sorry he had just reason
lor the severity of some of them ; at sames time I was pleased to find
he was equally well disposed to peace, and to bring it quickly to a con-
clusion as we were, and also that it should be a lasting one, as he, the
Doctor, had always proposed, and that 1 was only at a loss as to how
that could be ascertained other wax^ than by treaty, which Mr. Jay
declared he paid no regard to, and said it could only be dei)en(l«^d upon
as lasting by its being settled so as it should not be the interest of any
of the parties to break it. I told the Doctor this was certainly the best
security, if one could tell how to accommodate the terms so justly to
the mutual interests of the parties as to obviate every temptation to
encroachment or trespass.

'*The Doctor replied the method was very plain and easy, which was
to settle the terms in the first projection on an equal, just, and reason-
able footing, and so as neither party should have cause to complain ;
being the plan which Monsr. de Vergennes had in view, and had always
recommended in his conversations with him on the subject of peace;
and the Doctor said it was a good plan, and the only one that could
make the peace lasting ; and which also put him in mind of a story in
the Eoman history in the early times of the Bepublic. When being at
war with the state of Tarentum, and the Tarentians having the worst
of it they sent to the Senate to ask for peace. The ambassador being
called in, the Senate told him they agreed to give them peace, and then
asked him how long he thought it would last. To which he answered
that would be according to the conditions; if they were reasonable
the peace would be lasting; if not, it would be short. The Senate
seemed to resent this freedom of expression. But a member got up
and applauded it as fair and manly, and as justly challenging a due
regard to moderation on their part.

'* It is not easy for me to say how happy I felt myself at the conclu-
sion of this quotation. The terms and conditions, it's true, remained
undecided, and comprehend, no doubt, a very serious question, although
Dot material to what I aimed at. Nor did I conceive them to lie so much
in my way as in that of another department, by the concern which the
French minister took in settling the principle. Nor did I trouble my-
self abouc the possible metficacy of it as still depending iu some degree

935

§ 150,] APPENDIX.

OH the obligations of treaty, however cautiously adjusted. And there-
tore I did not think it proi)er to touch upon that point nor to say auy-
thiu^ on the subject of terms and conditions.

** 1 Uiought myself sufficiently satisfied in getting jlear of my appre-
hensions of those ill-founded suspicions of a supposed American guar-
/intee being intended, as mentioned in the papers of the 9th Instant.
And at the same time asking pardon of those to whom that design wa^
unjustly imputed. And which, upon my return from this visit, I sboald
Lave oertaiuly struck out of those i)aper8 if I did not with all saboiis-
»ion incline to think that by remaining under the eye of Govemroeot
ihey might help to show that the question of the iiossibility of sacb
{guarantee taking place on some future occasion may still not be uode-
«serving of attention. As to the consequences of such measure whenever
it happens (as pointed out in the said papers of the 9th) there can be
110 doubt, nor do I think it requires much ingenuity in the Amencaos
quickly to discover the expediency and benefit of resorting to it uu a
variety of occasions, particularly in case of our iusisting on terms in the
present treaty, or acting a part in our future correspondence with them,
which we cannot support iu such manner as to make it appear to them
to be their interest (and consistent with their engagements aud the
character they have adopted) quietly and contentedly to ^ubmit to.

**• I am the more ready to hazard the freedom of these observations
and the danger of exciting into action the least experiment of tbis kind
of combined interposition of the American provinces upon reflecting on
Dr. Franklin's hint of caution, as reported in one of my letters of last
month, 'not to force them into- the hands of other i)eople,' which 1 hope
will never happen, but on the contrary, after laying the foundation of
peace, the best manner that can be done on the bottom on which the
Congress wish it to staud, by an amicable and final agreement with their
commissioners here, every possible measure may thereafter be taken to
promote a temper of reconciliation and amity over the whole of that
country. As yet there has been nothing done in a separate way, bow-
ever unjustly suspected, to interfere with the plan of such preliminary
and regular settlement. And I hope the same will bo followed oat in
such a manner as to show to the Americans that all such concessions as
are required and can be reasonably granted do actually flow from a de-
sire of His Majesty and his ministers of laying this foundation on the
most just and equitable principles, and in a mutual relation to the ben-
efit of one party as well as the other.

<' After that is done and consequently every pretense and occasion of
jealousy is obviated, and constitutionally out of the question, I must
take the liberty to say that it will concern the interest of Great Britain
in the most sensible degree, as well in the hopes of returning benefit as
in that of avoiding contingencies of critical danger, to concert from this
time every possible method of facilitating and perpetuating a friendly
correspondence with those countries.

^' The second thing the Doctor touched upon was independence. He
said by the quotations of acts of Parliament he saw it was inclodedin
the commission ; but that Mr. Grenville had orders to grant it in the
ifirst instance. I replied it wa& true ; and that though supposed to bfe
granted under this commission and in the course of the treaty I hoped
it would make no difference with gentlemen who were so well disposed
to put an end to this unhappy business as I knew him to be.

^^ Ue then asked if I had instructions. I said 1 bad, and that were
under His Majesty's hand and sealj and that by them it appeared iude-

036

TREATY OF 1782-'83 WITH GREAT BRITAIN. [§ 150.

peDcleDce^uDconditioDaliD ever^* sense, would be granted, and tbat I saw
uo reason why it shoald not make the first article of tbe settlement or
treaty ; that I was sorry Mr. Jay should have hesitated so much on that
liead, as if it ought to have been done separately and by act of Parlia-
tDent. And now Parliament being up, that the grant should be made
by proclamation. That I did not pretend to judge whether the right and
authority of a grant of that kind, so conveyed, would be proper and
effectual. There seemed, however, to be one inconveniency in it that a
[)roclamation became an address to the Congress and to every part of
tbeir provinces jointly and separately, and might in so far interfere with
tbe progress of the present commission under which we hoped that all
pretensions would be properly and expeditiously settled. That in this
uiatter he was a better judge than I coAld pretend to be. I was only
^ure of one thing, that the affair might be as effectually done as in the
way proposed by Mr. Jay.

•* The Doctor replied that Mr. Jay was a lawyer, and might think of
things that did not occur to those who were not lawyers. And at last
<poke as if he did not see much or any difference ; but i^till such mode
)f exi)ression as I could not i)0sitively say would preclude him from in-
sisting on Mr. Jay's proposition, or some previous or separate acknowl-
Hlgment. I was glad to get clear of the subject without pushing for
further explanation or discussion, or yielding further, as I have men-
:ioned, than to a preliminary acknowledgment in ^the course of the
:reaty.

" 1 then said after that was done I hoped there would not be many
things to settle; and that the articles called necessary, which he speci-
fied on the 10th of July, would pretty nearly end the business; and
hat those called advisable, which as a friend to Britain and to recon-
iliation, he had then recommended, would be dropped or i^odifled in a
)roper manner ; that I had fairly stated the case at home, and could
lot but confess that I had this answer from one of his fnends. To this
[ cannot say I had any reply.

*< I then told the Doctor there was a particular circumstance which,
>f myself, I wished to submit to his consideration, as a friend to re-
nrning peace.

^^ England had ceased all hostilities against America by land. At
ea it was otherwise, and however disposed we might be to stop these
proceedings there also, I could not see how it could be done until the
»eople of America adopted the same plan. At the same time I was sen-
ible that by the strict letter of their treaty with France the Americans
onid not well alter their conduct before we came to a final settlement
nth that nation. That this was an unfortunate dilemma for both of us,
hat we should be taking each other's ships when perhaps we might,
Q other respects, be at perfect peace, and that notwithstandingthereof,
ve must continue in this course, waiting for a conclusion with France
md other nations, perhaps at a distant period. That although I had
ID orders on this head, yet as a continuance in this sp^cies of hostility
leemed to be so repugnant to the motives and principles which had de-
ermined a cessation on the part of England by land, and was certainly
b bar to that cordial reconciliation which he so much wished for, I
^uld not avoid submitting thi* case to his consideration, to see whether
le could find some remedy for it. The Doctor replied he could not see
low it could be done; it would be a difficult thing. However, at last
ie said he would think of it.

'• I next touched upon the subject of the loyalists, b^t could not flat-
er myself with the hopes of its ausweriri2f any good purpose ; the Doc-

037

§ 150.] APPENDIX.

tor having from the beginning assured me tUey coald take no part io
that basiness, as it was exclusively retained under the jurisdiction of
the rejspective States upon whom the several claimants had any de-
mands; and there having been no power delegated to the Congress on
that head, they, as commissioners, could do nothing in it. I only said
that I was sorry that no method could be suggested for a reasonable
accommodation tn a matter which I could not but suppose he would ad-
mit had a natural claim to the consideration of Government. I thought
it to no purpose to go any further upon the present occasion. If after-
wards things of a more immediate concern and importance should get
into a smooth train of proceeding, and be established, and I could
venture freely toappeal to their unprejudiced humanity and good sense
I would try it, although without hopes of their taking any other part
than in suggesting of means and expedients, and perhaps favoring the
proposals in the way of private recommendation to their countrymen.
As to the nngrauted or uuapiiropriated lauds, although they were no-
doubtedly the reserved property of His Majesty in all the States, I am
afraid when I come to state that claim as a fund towards indemnifica-
tion the commissioners will pretend these lands fell with the States as
much as the King's court-houses, &c.

" Upon the whole of this matter the Doctor said nothing, but that ho
was advised that the board of loyalists at New York was dissolved by
General Carleton, which he was glad of.

" The Doctor at last touched upon Canada, as he generally does upon
the like occasions, and said there could be no dependence on peace and
good neighborhood while that country continued under a different gov-
ernment, as it touched their States in so great a stretch of frontier. I
told him I was sensible of that inconvenieucy. But having no orders,
the consideration of that matter might possibly be taken up at some
future time. ' At my coming away the Doctor said that although the
proper commission was not come over, yet he said Mr. Jay would call on
me with a copy of their credentials. This being Sunday, he said the
copy would be made oat on Monday. On Tuesday he must go to Ver-
sailles, being the levee day, but on Wednesday they would call with
their papers. So that to-morrow I shall probabl}"^ have the honor of
seeing those gentlemen, and of course may have something still to add
to these tedious writings.'^

Richard Oswald to Thomas Townehend, August IL and 13, 17d2; FrankliD
Papersi Dept. of State ; printed in part in 9 Sparks' Franklin, 3S6^Jd9,

notes.

•

<^ In the conclusion of the papers of the 13th instant, I said that Dr.
Franklin and Mr. Jay were to call on me yesterday to exchange cre-
dentials,* but they did not call. I went out, therefore, this morning to
the Doctor to inform him that the commission had come to hand, of which
1 told him I would have informed him sooner if I had not expected him
yesterday. He excused himself on account of company coming in, which
made it too late for coming into Paris that forenoon, but that to-inor-
row he and Mr. Jay would certainly call. He said he was glad the sealed
commission was come. There was nothing material said on the subject
of business. I returned to Paris and called on 3Ir. Jay to inform him
in like manner of the commission being arrived. At meeting with tbis
gentleman I own I was under some concern on account of our former
conversation ; bat I was agreeably disappointed, having found iiini in

938

TREATY OF 1783-'83 WITH GREAT BRITAIN. [^ loO*

the best bnmor, aod disposed to enter into friendly discussion on the
business I came about.

^* He did not seem desirous of ^oing back upon past transactions, as
on the former occasion, and chiefly pointed at the object of a present
settlement. He said we had it now in our power to put a final period
to the misfortunes we complained of by carrying into execution what
had been solemnly intimated to them, and which Sir Guy Carleton had
orders to communicate to the Congress in America, a copy of whoso
instructions they were in possession of, one article of which says that
His Majesty was to grant unconditional independence to the thirteen
States of Nortji America. But that the way proposed of making the
same rest upon the events and termination of a treaty did not come u]>
to that description, and was a mode of performance which would not
give satisfaction to the Congress or people of America, and could not
be cousidered^by them as absolute and unconditional, it' only standin<r
as an article of a depending treaty, and upon the whole that they could
not treat at all until their independence was so acknowledged so that
the,\: should be on an equal footing with us and take rank as parties to
an agreement.

"That in this they had a fair precedent in the settlement of the
Dutch with the Spaniards, who refused to enter into any treaty until
they were declared free states. That if we wished for peace, that was-
the only way to obtain it; and if done with a becoming confidence and
magnanimity we should not only get a peace in the result, but, by the
concurrence of better management hereafter, he also hoped that a
happy conciliation and friendship would be restored and perpetuated
between both countries, notwithstanding all that hiis happened, which
he said would give him great pleasure. But that if we neglected this^
opportunity, and continue in our hesitation on that head, as we had
done, we should then convince them of the justice of their suspicions
of designs which he would not name, and should force them into meas-
ures which he supposed I had discernment enough to guess at, without
coming to further explanation. That he should be extremely sorry to
see things run into that strain, and, therefore, as the method proposed
was indispensable, he could not but seriously advise and recommend it»
A good deal more this gentleman said to the same purpose, without any
appearance of resentment or disgust. On the contrary, he delivered
his sentiment's in a manner the most expressive of a sincere and friendly
intention towards Great Britain. I should not do him justice if I said
less, and I am the more inclined to be particular in this part of the re-
port that I was so free in my remarks on his former conversation ; espe-
cially in my suspicions of an actual or premeditated connection with
foreign states, on account of his particular idea of guarding asraiust tho
violation of treaties, as mentioned in the preceding papers, but which,
although I could perceive was present to his mind on this r>ccasion also,.
yet I am now convinced had gone no farther than speculation, and as
he said himself, and which I really believe, he would be heartily sorry
they should have recourse to.

** At proper times I said what occurred to me as necessary to bring
this question to some sort of desirable period ; aud in particular wished
to have Mr. Jay's idea of such way of declaring this unconnected ascer-
tainment of independence as would satisfy them.

" His former proposal of doing it by proclamation he gave up, as-
liable to sundry objections needless to be here repeated. He then pro-
posed that it should be done by a particular and separate deed, or pat-

939

^ 150.] APPENDIX.

e«t under tbe great seal, in which my couimissioi for a treaty niiglit
also be narrated : and that such patent should be put into the possession
of the commissioners, to be by them sent over to Congress ; and acconl-
ingly Mr. Jay brought me a draft of the patent. As I could see no
other way of satisfying those gentlemen, and it ai>pearing highly neces-
sary that some beginning should be made with them, since until that
was done the foreign treaty could not proceed in its course, I agreed
to send the draft over to His Majesty's secretary of state by a courier
express for that purpose, with my own opinion rather in favor of the
proposal than otherwise. And so it was settled with the commissioners.
However, afterwards in casting my eye over the preamble of the draft,
where it is stated, as if Sir Guy Garleton had orders to propose treaiUs of
peace^ c&e., to the Congress^ and l>elieving this to be a mistaken quota-
tion of memory from the copy of Sir Guy's instructions in the possession
of the commissioners, and as such inferring an unjust iinputatiou on
the consistency of the conduct of administration, and apprehendingalso
that the commissioners entertained a doubt of this nature, might have
been the reason why they wished to be guarded with all this caution,
in requiring this special acknowledgment under the great seal, besideii
keeping their minds in suspense in all future proceedings, where confi-
dence in good faith ought to smooth the path in many occasions to a
happy termination, I say, in reflecting on these things, I thought it mj
duty, and I confess I was, on my own particular account, a little anxioajS,
to have an explanation of this matter, and therefore, after it had beeu
agreed in the presence Dr. Franklin and Mr. Jay that I should send off
the draft, I took the liberty to point out to them the said preamble, telling
them that there might be a possibility of mistake or misquotation in tbe
last part of the paragraph. Mr. Jay said he had not the copy of Sir
Guy's instructions, and acknowledged he had inserted those wonls from
a general impression that remained on his memory, and could not i)08i-
tively say but there might be some mistake. Dr. Franklin said he bad
a copy of the instructions and would send a duplicate to Mr. Jay in a
few hours. He did so, and I waited on Mr. Jay to see the papers.
Upon the perusal he owned he had been mistaken, and that Sir Gn/i}
instructions went no further than an order of communication to ioform
the Congress and General Washington that His Majesty intended (or
had given directions) to grant free and unconditional indepeudenoe to
the thirteen States, &c. Finding this prejudice entirely removed, and
that Mr. Jay was perfectly satisfied that the whole course of proceed-
ings in this matter was fair and consistent, I asked him what occasion
there was then for this extraordinary caution of insisting on the solein-
uity of such separate deed under the great seal, &c., since a prelimi-
nary clause or article in the treaty, as always intended, might do the
whole business by making it absolute and not depending in [sic] the vietr
of ascertainment on the event of other or subsequent articles, and whicli
might be expressed [sic] as to remove every doubt as to the independ*
«nce being as free and unconditional as they desired it to be. lu ood-
iirmation of the greater expediency and dispatch of this method, aod
that it was the sincere intention of His Majesty to make this grant in
the precise way they desired, I thought myself warranted in telhng him
that I had a full power in my instructions to give them entire satisfac-
tion on this head, and made no scruple in showing it to him as it stood
in the fourth article thereof Upon the perusal Mr. Jay said that was
'enough, and he was fully satistied ; and there was no occasion for any
other writing on the subject. That resting upon this would save time

940

TREATY OF 1782-'83 WITH GREAT BRITAIN. [§ 150.

and be was happy also that this discovery of this mistake prevented
their asking of His Majesty any further proof of his good intentions to
wards them than what were actually meant and conveyed in those
instructions. Upon this I promised immediately to send o£L' this repre-
sentation and also to desire leave and permission to make an absolute
acknowledgment of the independence of the States to stand invariably
as the first of the proposed treaty with those gentlemen. Meantime I
think it proper to send inclosed the intended draft (though now of no use
here), to show by the words scored in the preamble the ground of those
gentlemen's hesitation and what gave occasion to their insisting on a
separate deed under the great seal.

^^I have now to add, in relation to my last conversation with Mr. Jay^
that after having quitted the subject of their particular affairs, and
thinking myself at liberty to enter into a greater freedom of conversa-
tion, I wished to take the opportunity of saying something relative to
foreign affairs to a man of good sense and temper, who. in his present
and future situation, may have it in his power, here and elsewhere, to
exemplify by his good offices those favorable inclinations respecting
Great Britain which he so freely and warmly expressed on the present
occasion.

^^Accordingly at proper periods I made no scruple in throwing out
the following observations : That after settling with them, whit h I
hoped would end to the satisfaction of both paities, our next concern
regarded a settlement with France and other foreign nations. That as
yet I understood we could make no guess at what France aimed at.
They kept themselves on the reserve, perhaps partly with a view of
being in some measure governed in their proposals by the manner in
which our settlement of American affairs may proceed.

'^ That in the course of the American war they had taken the oppor-
tunity of making separate conquests for themselves, and encouraged
by this late alteration in our system, it may be supposed they were pro-
jecting some hard terms of settlement for us, by their delay in coming
to particulars, excepting only their declaration of having no interest
or concern in the article of American independence; and consequently
that in every view of equivalent it is to have no place in abatement of
their claims of retention or further requisition.

^* That having taken the Spanish and Dutch concerns also under their
cover, and so an not to treat but jointly or in concurrence with them, the
prospect of a speedy and favorable settlement for Great Britain became
still the more unpromising, unless they, the commissioners of the col-
onies, should interfere to check the exorbitancy of the terms which thus
might be expected to be insisted on by such combination of foreign
states.

^^ And this prospect I said was still the worst that I understood he
himself (Mr. Jay) had concluded, or was about to conclude, a treaty
with Spain on the same footing with that which the Congress had set-
tled with France. That the restraining clause in those treaties regaid-
ing truce or final peace between England and America until there was
also a final settlement with those foreign states was a most unlucky
circumstance, and, therefore, the more of those treaties the commis-
sioners entered into, so much the worse for England.

^^A great deal more I said, but being chiefly of a speculative kind, re-
garding future times, and the different situation we should be in from
what had formerly been, and the need we should feel ot a iriendly in-
tention on the part of the colonies, with other things of so general a«
nature, not necessary to be repeatea here.

041

^ 150.] . APPENDIX.

"In answer, Mr. Jay replied to the following purpose: That we bad
only to cut this knot of independence to get rid of many of those ap-
prehensions 5 that if we looked better to our conduct in future we might
be sure of recovering and- preserving a solid and beneficial frieodBhip
with the Americans; that for the lai^t twenty years he could not say
much for us, yet he said more particularly regarding the fairness aud
sincerity of our professions than I choose to repeat. He continued by
saying that England, under a wise administration, was capable of great
things. Such a country, such a people, and blessed with such a coq-
Btitution, had nothing to fc:ar, and in thirty years would forget all her
present difficulties, &c.

"That as to the Spanish treaty, he had not proceeded far in it, and
unless we forced them into those engagements he did not see tbat the
people of America had any business to fetter themselves with them, and
in the mean time he assured me he would eltop as to this of Spain, which
I was very glad to hear of.

" He said he supposed the terms of France would be moderate, and
in tbat case he would give his advice that when they came to light tbat
the court of England would consider them with temper; and after
making a deliberate estimate of the price they can afford to give for
peace, to strike at once without haggling about it. That if their in-
dependence was once settled, he hoped that next winter would put an
end to the war in general. That it was true there was a look here to-
ward another campaign, and what might be the possible conseqaences
of the operations in the interim, and touched upon the East Indies, as
if great expectations from thence were entertained at this court, &c.
Amongst other things, I omitted, when we were talking of independ-
ijuce, that I mentioned, by the by, as if it was understood, that when
America was independent of England they would be so also of all other
nations. Mr. Jay smiled, and said they would take care of that, and
seemed in his countenance to express such disapprobation of any ques-
tion being put on that head as would make one cautious as to the man-
ner in which any stipulations on that subject should be proposed to
those gentlemen."

Richard Oswald to Thomas Townsheud, August 15 and 17, 1782; Frtnklm
Papers, Dept. of State ; printed in part in 9 Sparks' Franklin, 389-^1.
note.

" By the packet of this date you'll please to observe that the Ameri-
can business is now brought to that point that independence must be
absolutely and unconditionally granted, otherwise all further cone-
jspondence with tbe commissioners must cease, as well aa Mr. Fitz-Her-
bert's negotiation in the foreign treaties. I was so well convinced of
that being the event of a delay, and the disagreeable consequence
thereof, that I have promised to the commissioners that I would dispatch
this courier express on that subject, with my opinion of the necessityof
complying with their demand, having them [«ic] at same time such as-
surance as I can venture upon that they will not meet with either delaj
or refusal.

'• By the third page of the packet of this date you will please to ob-
serve that the commissioners have given up their demand of a certifica-
tion of the grant by a separate deed, or patent under the great seal,
and will be satisfied with its being included in the treaty and standing
as an article thereof. Only that it must upon being inserted there be
ratified or declared as absolutely and irrevocably acknowledged and as
not depending upon the event of other or subsequent articles. It will

TREATY OF 1782-'83 WITH GREAT BRITAIN. [§ 150.

be easily' settled in that raauner to the satisfaetiou of those gentlemen,
for which I shall only want your permission to make the declaration.
If the commissioners should desire an extract of that article, I can cer-
tify it, and they will be satisfied, as Mr. Jay assures me. If it is His
Majesty's pleasure that the grant should be made, the sooner I have a
return to this the better; there having been of late an anxiety and ap-
pearance of diffidence in those gentlemen as to this matter, which I
presume to think it would be proi)er to put an end to, it only to have
the chance of proceeding more agreeably and advantageously through
the rest of the treaty.''

Richard Oswald to T. Towushend, August 17, 17e2; Franklin MSS., Dept. of
State.

'^ The commissioners liere insist on their independence and conse-
quently on a cession of the whole territory. And the misfortune is that
their demand must be complied with in order to avoid the worst conse-
quences, either respecting them in particular or the object of fi^eneral
pacification with the foreign states, as to which nothing can be done
until the American independence is settled. Allow me, then, sir, to
propose that you give me permission to declare this independence as the
llrst article of the treaty, and to certify the same as so much absolutely
finished in the process; and which thereby becomes a ratified act, let
what will happen afterwards in the subsequent demands of either#side
in the course of the treaty. Which is, I believe, what the commission-
ers will insist on or will not treat at all."

Richard Oswald to T. Townshend, August 18, 1782 ; Franklin MSS., Dept. of
State.

"I have received and laid before the King your letters of the 17th,
18th, and 21st instant, together with the three packets of papers con-
taining conversations with Dr. Franklin and Mr. Jay, and your observa-
tions thereupon enclosed in 3'our letter of the 17th, and I am commanded
to signify to you His Majesty's approbation of your conduct in com-
municating to the American commissioners the fourth article of your
instructions, which could not but convince them that the negotiations
for peace and the cession of independence to the thirteen united col-
onies were intended to be carried on and concluded with the commis-
sioners in Europe. Those gentlemen having expressed their satisfac-
tion concerning that article, it is hoped they will not entertain a doubt
of His Majesty's determination to exercise in the fullest extent the
poff^ers with which the act of Parliament hath invested him, by granting
to America full, complete, and unconditional independence, in the most
explicit manner as an article of treaty. But you are at the same tune
to represent to them, if necessary, that the King is not enabled by that
Siiit to cede independence, unconnected with a truce or treaty of peace,
and that therefore the cession of independence cannot stand as a single,
separate article, to be ratified by itself; but may be (and His Majesty
is willing shall be) the first article of the treaty, unconditionally of any
compensation or equivalent to be thereafter required in the said treaty.
You will observe that the very article of your instructions referred to is
conformable to this idea, as it is expressly mentioned to be offered by
His Majesty as the price of peace ; and that independence, declared
and ratified absolutely and irrevocably, and not depending upon the
event of concluding an entire treaty, might in the end prove a treaty
for the purpose of independence alone, and not for a peace or trucej to
which objects all the powers of the act refer.

943

§ 150.] APPENDIX.

" I should tbink it unuecessary here to advert to the treaty of 1607,
between the court of Spain and the United Provinces, were it not that
you represent Mr. Jay as having quoted the conduct of the Dutch on
that occasion by way of precedent. If you look into the Corps Diplo-
matique and the other books upon the subject you will see this gentle-
man is mistaken in his opinion. It appears that the Spaniards did in-
deed declare, previous to the truce in 1607, that they would treat with the
states en qualuS et comme les tenans pour etre provinces et pais libres %ur
les quels Us nepretendent rien. But it is to be observed that this decla-
ration is itself conceived in very qualified terms, and though (as appears
from Jeannin's account of the subsequent negotiation) the states en-

Ideavored to insert the words pour toujours and to omit the word commcj
so as to make the declaration absolute and final, it remained in the
original shape. The declaration was itself inserted as the first article
in the body of the truce, and no ratification of this declaration was re-
I ceived from the King of Spain till after the truce was agreed upon, and

what is still stronger, the ratification, when it came, actually restrietedhj
express terms, the acknowledgment of independence to lastno longer ikei^
the time of the truce. The same declaration was again inserted as the
first article of the twelve years' truce in 1607, and afterwards a final and
complete acknowledgment of the independence of the states was in-
serted as the first article in 'the preliminaries of peace settled in 1640^
and afterwards in the same manner as the first- article in the peace of
Munster in 1648, which put the last completion to the business.

^^If the American commissioners are, as His Majesty is, sincerely dis-
posed to a speedy termination of the calamities of war, it is not to be
conceived that they will be inclined to delay and to embarrass the ne-
gotiation by refusing to accept the independence as an article of the
treaty, which by that means may be to them secured finally and com-
pletely, so as to leave no possible ground of jealousy or suspicion. But
in onler to give the most unequivocal proof the King's earnest wish to
remove ever^' imi)ediment I am commanded to signify to you His Maj-
esty's disposition to agree to the plan of pacification pro]K>se(i by Dr.
Franklin himself, including as it does the great point in question as
part of the first article.

"The articles as specified by Dr. Franklin to you and recited in your
letter to the Earl of Shelburne of the 10th July last are as follows, viz:

"(1) Of the first class necessary to be granted independence fall ami
complete in every sense to the thirteen States, and all the troops to be
withdrawn from thence.

"(2) A settlement of the boundaries of their colonies and the lojal
colonies.

"(3) A confinement of the boundaries of Canada at least to what they
were before the last act of Parliament, you think in 1774, if not to a
still more contracted state, on an ancient footing.

"(4) A freedom of fishing on the banks of Newfoundland andelise-
where, as well for fish as whales.

"These articles were stated by you as all that Dr. Franklin tbonght
necessary; and His Majesty, trusting that they were suggested with
perfect sincerity aod good faith, has authorized you to go to the fail
extent of them. The third article, however, must be nnderstooil fln*!
expressed to be confined to the limits of Canada as before theacK^f
1774. As to the fourth, the liberty of fishing, the privilege of tlryiiijr \wi
being included in Dr. Franklin's demand, it is taken for granted that
it is not meant to be inserted in the treaty. His Majesty is also plea!»<lf

944

TREATY OF 1782-'83 WITH GREAT BRITAm. [§ 150.

>r the salutary purposes of precluding all future delay and embarrass-
lent of negotiation, to waive any stipulation by the treaty for the un-
oubted rights of the merchants whose debts accrued before the year
775, and also for the claims of the refugees for compensation for their
3sses, as Dr. Franklin declares himself unauthorized to conclude upon
hat subject. Yet His Majesty is well founded, it is hoped, in his ex-
lectation that the several colonies will unite in an equitable determina-
ion of points upon which the future opinion of the world with respect
0 their justice and humanity will so obviously depend. But if, after
laving pressed this plan of treaty to the utmost, you should find the
American commissioners determined not to proceed unless the inde-
lendence be irrevocably acknowledged yithout reference to the final
ettlement of the rest of the treaty, you are to endeavor to obtain from
hem a declaration that if this point of independence were settled they
rould be satisfied as far as relates to America with such further con-
essions as are contained in the four articles as above stated. You are
hen, but in the very last resort, to inform them in manifestation of the
Ling's most earnest desire to remote every impediment to peace that
lis Majesty is willing, without waiting for the other branches of the
egotiation, to recommend to his Parliament to enable him forthwith
0 acknowledge the independence of the thirteen united colonies abso-
itely and irrevocably, and not depending upon the event of any other
art of the treaty.

"But upon the whole, it is His Majesty's express command that you
0 exert your greatest address to the purpose of prevailing upon the
Lmericau commissioners to proceed in the treaty, and to admit the
rticle of independence as a part, or as one only of the other articles
rhich you are hereby empowered to conclude."

T. Townsbend to Richard Oswald, Sept. 1. 1732. Franklin MSS., Dept. of State.
Printed in part in 9 Sparks' Franklin, 403, 404, note.

•

<< By the courier Eanspach, who arrived here on the 3d, I had the
lonor of your letter of the 1st instant. Upon receipt of it I went out to
)r. Franklin. He askd me if I had any directions relative to the point
ipon which the last courier had been dispatched to England, regarding
b previous declaration of their independence before a commencement
if treaty. I told him I had got instructions upon that head, which al-
hough they empowered me only to make such declaration as in the
Lrst article of the treaty, yet I hoped upon a due consideration of the
aatter they would appear to be fully satisfying. He said if there was
10 particular objection he could wish to hare a copy of that instruc-
ion. I told him it should be sent to him. He was ill at the time, and
IS he could not come to town, he gave me a letter to Mr. Jay, desiring
dm to come out to him in the evening. I called on that gentleman,
7hen, informing him of the manner in which I was authorized to treat,
le said he could not proceed unless their independence was previously
10 acknowledged as to be entirely distinct and unconnected with treaty,
n the course of this conversation, and the day thereafter, a good deal
vas said of the same nature with what had passed on former occasions
elative to this subject, as advised in my letters of last month.

" Two days ago Dr. Franklin sent to me, desiring a copy of the in-
itructions which I had promised as above mentioned. 1 copied out
he first part of your letter of the 1st instant, leaving out some imma-
erial words, and sent it inclosed in a letter from myself, of both of
irhich papers there is a duplicate under this cover.

S. Mis. 162— VOL III 60 945

§ 150. APPENDIX.

'' Since then I have seen Mr. Jay frequently, and have used every ar-
gument in my power to get him over his objections to treating without
a separate and absolute acknowledgment of independeuce. And for
that purpose I found it necessary (although unwillingly), yet, as of my
own private opinion, to tell him that there might be a doubt whether
the powers in the act of Parliament went so far as to allow of making
that grant otherwise than as in the course of a treaty for peace ; which,
as you are pleased to observe, was the sole object of the act.

" I said, moreover, that if they persisted in this demand, there could
be nothing done until the meeting of Parliament, and perhaps for some
considerable time thereafter. That certain articles had already been
agreed upon, and if he went dn and settled the treaty on that footing,
with independence standing as the first article of it, we might give op-
portunity to the foreign treaties to be going on at the same time ; so as,
for a conclusion of a general peace, there might be nothing wanting at
the meeting of Parliament but a confirmation of the first article in case
it should be then thought necessary ; which I imagined would not be
the case.

^' In answer to this Mr. Jay said there could be no judgment formed a»
to when the foreign treaties would end, and that until that with France
was concluded they of the colonies could not give us either peace or
truce, nor could they presume so much as to give an opinion of the de-
mands of France, whatever they might be, since until their independence
was acknowledged, absolute and unconnected with ti*eaty, they were as
nobody (f ) and as no people, and France could tell them so if they were
to pretend to interfere; having failed to acquire that character for wbich
they had jointly contended, and therefore they must go on with France
until England gave them satisfaction on the point in qnestion. That
to this they were bound by treaty, which their constituents were deter-
mined honestly and faithfully to fulfill. That being the case, it could
not be expected that they as servants could take it upon them to (lis
pense with the said acknowledgment.

*< That by looking over the sundry resolves of their Congress, I might
see that that assembly did not mean to seek for their character in any
article of any treaty 5 and for that purpose Mr. Jay recommended to
me the perusal of sundry parts of their proceedings as they stood in the
journals of the Congress which he would mark out for me, and if I woald
extract and send them to England they would serve at least as an ex-
cuse for them as commissioners, in thinking themselves bound to abide
by their demand. Mr. Jay accordingly gave me four volumes of their
journals, with sundry passages marked out as above. Mr. Whiteford
has been so good [sic] to copy them out ; and they are inclosed.

<^ Mr. Jay was kind enough also to read to me an article of their instrnc-
tions to the same purpose, and likewise containing paragraphs of two
late letters from his colleague, Mr. John Adams, in Holland, expressly
declaring that they ought not to proceed in a treaty with England until
their independence is acknowledged.

" In the course of these conversations it may be supposed this g^tle-
man took frequent opportunities to refer to the offer by Mr. Grenville
to acknowledge their independence in the first instance, which they
always considered to be absolute and unconnected in every shape with
a treaty; and could not conceive the reason why that which we were
willing to give them in May should be refused in August. If itpw
ceeded from there being less confidence on our side, on this occasion,
the change ought to make them still more cautious than usual on tbeir

946

TREATY OF 1782-'83 WITH GREAT BRITAIN. [§ 150.

•art. Mr. Jay also insisted on that offer of Mr. Grenville as a proof
hat the same tbinp: being denied now could not proceed from any sup-
position of restraint in the enabling act.

" To avoid being tedious I forbear repeating a great many more things
0 tbe same purpose which passed in those conversations with Mr. Jay.
Ir. Franklin being so much out of order, I could not think of disturb-
Qg him by frequent visits to Passy, and therefore continued taking
>roper opportunities of talking to Mr. Jay ; and the more readily that
>y any judgment I could form of his real intentions, I could not possibly
loubt of their pointing directly at a speedy conclusion of the war ; and
klso, leaning as favorably to the side of England as might be consist-
ent with the duties of the trust he has undertaken.

<' To convince me that nothing less than this stood in the way of agree-
ng to my request of accommodating this difficulty in some shape or
»ther, he told me at last if Dr. Franklin would consent, he was wili-
ng, in place of an express and previous acknowledgment of independ-
ence, to accept of a constructive denomination of character, to be intro-
luced in the preamble of the treaty, by only describing their constitn-
ints as the thirteen United States of America. Upon my appearing
:o listen to this and to consent to the substitution, he said, 'But you
lave no authority in your commission to treat with us under that de-
iomination, for the sundry descriptions of the parties to be treated with,
IS they stand in that commission, will not bear such application to the
character we are directed to claim and abide by as to support and au-
henticate any act of your subscription to that purpose, and partica-
arly to the substitution now proposed, there are such a variety of de-
nominations in that commission that it may be applied to the people you
$ee walking in the streets as well as to us.'

" When, in reply, I imputed that variety to the official style of such like
)apers, Mr. Jay said it might be so, but they must not rest a question
»f that importance upon any such explanation. And since they were
filling to accept of this, in place of an express declaration of independ-
ence, the least they could expect was that it should appear to be war-
anted by an explicit authority in that commission.

'^ I then asked if, instead of States, it would not do to say provinces ;
)r States or provinces. Mr. Jay said neither of these would answer.

" I then begged the favor of him to give me in writing some sketch
f the alteration ho would have to be made in the commission. He
eadily did so in a minute which is inclosed ; to bo more largely ex-
plained, if necessary, when the commission comes to be made out. He
Iso said that this u6\t commission must be under the great seal as the
itber was.

** Before I quitted this subject I tried one other expedient for saving
ime and avoiding the necessity of a new commission ; by reading to
fr. Jay the second article of my instructions, which empowers me to
reat with them as commissioned by constituents of any denomination
rhatever, and told him that although this power meant only to apply
0 character as assumed by them, and not to an admission by me with-
ut exception, yet in the present described character of States I would
tot only admit their assuming that appellation in the preamble of the
reaty, but 1 would venture to repeat it, so as it should appear to bo an
<5knowledgment on my part. In doing so I could not suppose any
lazard of objection at home, considering what had passed on a former
iccasion above mentioned, together with the said power in my instruc-
ions. But Mr. Jay said they could admit of no authority but what was

947

§ 150.]

APPENDIX.

explicitly conveyed to me by a commission in tbe usual form, and there-
fore to put an end to this difficulty there was an absolute necessity for
a new commission.

'^He at the same time told me that to satisfy His Majesty's ministers
of the propriety of their conduct, as persons under trust, he had sketched
out a letter to me, which I might send home if I pleased. He read the
scroll of it to me, and promised to write it out fair, and give it to me
before the departure of a courier.

" So the affair rested yesterday, the 9th, when I received a letter from
Dr. Franklin, desiring a copy of the fourth article of my instructions,
which I had shown to Mr. Jay, as formerly advised. Inclosed there is
a copy of the Doctor's letter.

"Doubting as to the propriety of giving such things in writing, I
thought it. best to go out to the Doctor, carrying the instructions along
with me, to see whether a reading of that article would satisfy him ;
but after reading it, as he still expressed a desire of having a copy, I
told him that although I had no orders to that purpose, yet at any
hazard whatsoever, since he desired it, I would not scruple to trust it
in his hands, and then sat down and wrote out a copy and signed it^
which, after comparing with the original, he laid by, saying very kindly^
that the only use he proposed to make of it was, that in case they toofe:
any liberties for the sake of removing difficulties not expressly speci-
fied in their instructions, he might have this paper in his hands to show
in justification of their confidence, or some words to that purpose, for J
cannot exactly quote them. The Doctor then desired I would tell Mr.
Jay he wished to see him in the evening. He did go out that night and
again this morning, no doubt with a view of agreeing upon an expedient
for removing those obstacles to their proceeding, as hinteil at iu tLe
Doctor's letter to me.

"At noon, and since writing the above, Mr. Jay called and told me
that upon further consultation and consideration of the matter, it was
thought advisable not to press upon His Majesty's ministers those ar-
guments which ho proposed to make use of in the letter he intended to
write me (and which it was understood I might send home), as consid-
ering it somewhat more than indelicate for them to pretend to see more
clearly than the King's ministers might do the expediency, if not the
necessity, at this critical time, to decide with precision and dispatch
upon every measure that can be reasonably taken for extricating Great
Britain from out of the present embarrassing situation in which her af-
fairs must continue to be involved while there remains any hesitation
in coming to an agreement with the States of America.

" I liked the scroll of the letter so much yvhen it was read to me y^*
terday that I was sorry it was withheld j I even pressed to be intrusteo
with it, in gratification of my own private wish that the writer of it
might receive from good men that share of applause that is due to those
who wish well to the peaee of mankind in general, and who seem not to
be desirous of expunging altogether from their breast the impressions
which had been fixed there by those habits and natural feelings by which
individuals are tied in attachment to particular combinations of sodel^
and country. But I could not i^revail, and was obliged to be contented
with a recommendation to say what I thought proper in my own way.
Finding it so, there remained for me only to ask a single and final ques-
tion of Mr. Jay, whether in this his last conference with Doctor this
morning (for he was just then come in from him) it was settled between

94S

TREATY OF 1782-'83 WITH GREAT BRITAIN. [§ 150.

them tbat upon my receiving from His Majesty a new commission, under
the great seal, sach as the last, with an alteration only as before men-
tioned, of my being empowered to treat with them as commissioners of
the thirteen United States of America, naming the said States by their
several provincial distinctions, as nsual, I said whether in that case
they would be satisfied to go on with the treaty, and without any other
declaration of independence than as standing as an article of that treaty.

'* Mr. Jay's answer was that with this they would be satisfied, and
that immediately upon such commission coming over they would proceed
in the treaty, and more than that, said they would not be long about
it, and perhaps would not bo over hard upon us in the conditions.

^^ Having stated those conversations and other circumstances as they
actually passed, to the best of my remembrance, it would not become
me to go farther by giving any opinion as to the measures proper to be
taken in consequence thereof. Yet, sir, I hope you will excuse, and I
think it my duty to say, this much, that by what I have been able to
learn of the sentiments of the American commissioners, in case the com-
promise now proposed (which with great difficulty they have been per-
suaded to agree to) is refused, there will be an end to all further confi-
dence and communication with them. The consequence of which I will
not presume to touch upon, cither as regarding America or foreign af-
fairs. On the other hand, if the expedient of a new commission is adopted,
I beg leave to say that no time ought to be lost in dispatching it. There
being now four couriers here, and as they may be wanted at home, it is
thought proper that one of them, as extra, may go along with the courier
Lawzun, who goes from Mr. Fitzherbert's office."

Richard Oswald to Thomas Townshend, Sept. 10, 1782 ; Franklin papers, Dept.
of State ; printed in part in 9 Sparks' Franklin, 405-407, notes.

A memorandum is attached to Mr. Oswald's letter to Mr. Townshend
of September 11, 1782, entitled, "Minutes regarding the intended treaty
with the commissioners of the colonies, and what is required of me by
His Majesty's instructions on that head, 29th August, 1782."

In this memorandum occurs the following :

"Article 4. A freedom of fishery on the banks of Newfoundland and
elsewhere, said to be another indispensable article. '

"This was proposed and read out of the minutes by Dr. Franklin
on the 10th July, under the general description. 1 did not then think
it proper to ask for an explanation: nor whether he included a privilege
of drying fish on the island of Newfoundland.

"As to fishing on the Great Bank, or any other bank, I did not think
it material to ask any questions, as 1 supposed the privilege would not
be denied them ; or, if denied, I doubted whether their exclusion could
be maintained but by continuing in a state of perpetual quarrel with
the people of the New England governments. An explanation was still
the less necessary, that a question on the same subject would come un-
der consideration in our treaty with France. In the determination of
this last point, perhaps, it may be no loss to Great Britain that the
Americans are admitted to an equal privilege with the French. Those
four articles were, to the best of my remeoibrance, all that were said
by the Doctor on the 10th July as indispensable in a settlement of any
kind."

Franklin MSS., Dept. of State.

040

§ 150.] APPENDIX.

In a letter from Mr. Strachey, of the British legation, to Mr. T. Town-
shend, Paris, November 29, 1782, *' eleven at night," it is said, "a very
few hours ago we thought it impossible that any treaty could be made.
We have at last, however, brought matters so near a conclusion that
we have agreed upon articles and are to meet to-morrow for the purpose
of signing. Inclosed are such of the articles as are altered, and an ad-
ditional one which we mean as a security in case it be true that Ber-
muda is taken. The article on the fishery has been difficult to settle,
as we thought the instructions were rather limited. It is, however, be-
yond a doubt that there could have been no treaty at all if we had not
adopted that article."

Franklin MSS., Dept. of State,

In a lettei" from Mr. Oswald to Mr. T. Townshend, dated Paris, Novem--
ber 30, 1782, it is said : ^^If we had not given way in the article of the
fishery we should have had no treaty at all, Mr. Adams having declared
that he would never put his hand to any treaty if the restraints regard-
ing the 3 leagues and 15 leagues were not dispensed with, as well 89
that denying his countrymen the privilege of drying fish on the unsettled
parts of Nova Scotia."

Franklin MSS., Dept. of State.

'^The clamor against the peace in your Parliament would alarm me
for its duration if I were not of opinion with you that the attack is
rather against the minister. I am confident none of the opposition
would have made a better peace for England if they had been in bis
place ; at least I am sure that Lord Stormont, who seems loudest in
railing at it, is not the man who could have mended it.'*

Dr. Franklin to the Bishop of St. Asaph (Dr. Shipley), Mar. 17, 1783. FraDklin
MSS., Dept. of State; 9 Sparks' Franklin, 498.

<^As Lord Shelburne had excited expectation of his being able to pat a
speedy termination to the war, it became necessary for him either to real-
ize those expectations or to quit his place. The Parliament having met
while his negotiations with us were pending, he found it expedient to
adjournit for a short term, in hopes of then meeting it with all the ad-
vantages which he might naturally expect from a favorable issue of the
negotiations. Hence it was his interest to draw it to a close before
that adjournment expired, and to obtain that end both he and his com-
missioner prevailed on themselves to yield certain points upon which
they would probably have been otherwise more tenacious. Naj, we
have, and then had, good reason to believe that the latitude allowed by
the British cabinet for the exercise of discretion was exceeded on that
occasion."— Draft of Mr. Jay to Mr Livingston, 18th July, 1783, *• con-
cluded to be left out.''

Franklin MSS., Dopt. of State.

In the original draft of Dr. Franklin's letter of July 22, 1783, to Mr.
R. R. Livingetou, as on file in tbe Franklin ])apers in the Department
of Statr, is the following > "I will only add, with respect to myself,-
neither the letter to Mr. ^Marbois, handed to us through the British nego-
tiators, (a suspicious channel) nor the conversations respecting the fish-
ery, the boundaries, the royalists, &c., recommending moderation in our

950

TREATY OF 1782-'83 WITH GREAT BRITAIN. [§ 150.

•demands, areof Nveigbt sufficient iu my mind to fix an opinion tbat this
court (of France) wished to restrain us in obtaining any degree of
advantage we could prevail on our enemies to accord j since those dis-
courses are fairly resolvable by supposing a (very natural, interlined)
apprehension that we, relying too much on the ability of France to con-
tinue the war in our favor (or supply us constantly with money ,in<er-
lines) might insist on more advantages than the English would be willing
to grant, and thereby lose the opportunity of making peace, so necessary
to all our friends.

" I ought not, however, to conceal from you that one of my col-
leagues is of a very different opinion from me in these matters. He
thinks the French minister one of the greatest enemies of our country,
that be would have straitened our boundaries to prevent the growth
of our people, contracted our fishery to obstruct the increase of our sea-
men, and retained the royalists among us to keep us divided: that he
privately opposes all our negotiations with foreign courts, and afforded
us during the war the assistances we received only to keep us alive that
we might be so much the more weakened by it ; that to think of grat-
tade to France is the greatest of follies, and that to be influenced by
it would ruin us. He makes no secret of his having these opinions, ex-
presses them publicly sometimes in presence of the English ministers ;
and speaks of hundreds of instances which he could produce in proof of
them, none of which, however, have yet appeared to me, unless the
<^onversations and letter above mentioned are reckoned such. If I
were not convinced of the real inability of this court to furnish the
farther supplies wo asked, I should suspect these discourses of a per-
son in his station might have influenced the refusal, but I think they
have gone no further than to occasion a suspicion that we have a con-
siderable party of Antigallicans in America who are not Tories, and
consequently to produce some doubts of the continuance of our friend-
ship. As such doubts may hereafter have a bad effect, I think we can-
not take too much care to remove them ; and it is therefore I write this
to put you on your guard (believing it my duty, though I know that
I hazard by it a mortal enmity), and to caution you respecting the in-
sinuations of that gentleman against this court, and the instances he
supposes of their ill-will to us, which I take to be as imaginary as I
know his fancies to be, that Count de Y. and myself are continually
(plotting against him and, interlined) employing the newswriters of
Europe to depreciate his character, &c., but, as Shakesx>eare says,
^Trifles light as air,' &c. I am persuaded, however, that he means well
for his country, is always an honest man, often a wise one, but some-
times and in some things, absolutely out of his senses.

^^ When the commercial article mentioned in yours of the 26th was
struck out of oui^ proposed preliminaries by the then British ministry,
the reaaon given was thalt sundry acts of Parliament still in force were
against it, and must be first repealed, which, I believe, was really their
intention ; and sundry bills were accordingly brought in for that purpose.
But new ministers with different principles succeeding, a commercial
proclamation totally different from those bills has lately appeared. I
send inclosed a copy of it. We shall try what can be done in the de-
finitive treaty towards setting aside that proclamation. But if it should
be persisted in, it will then t^ a matter worthy the attentive considera-
tion of Congress whether it will be now prudent to retort with a similar
regulation in order to force its repeal (which may possibly tend to bring

951

F-i

§ 150.] APPEI DIX.

on another quarrel, inierllned)^ or to let it pass without notice, and
leave it to its own inconvenience (or rather impracticability, inferltned)
in the execution, and to the complaints of the West India planters,
who must all pay much dearer for our produce under those restric-
tions. I am not enough master of the course of our commerce to
give au opinion on this particular question, and it does not behoove
me to do it ; yet I have seen so much embarrassment and so little advan-
tage in all the restraining and compulsive systems, that I feel myself
strongly inclined to believe that a state which leaves all her ports open
to all the world upon equal terms will by that means have foreign com-
modities cheaper, and sell its own productions dearer, and be on the
whole the most prosperous. I have heard some merchants say that
there is 10 per cent, difference between Will you buy f and Ft7/j/ou
sell t When foreigners bring us their goods they want to part with
them speedily, that they may purchase their cargoes and dispatch their
ships which are at constant charges in our ports; we have then the
advantage of their Will you buy f — and when they demand our produce
we have the advantage of their Will you sell? and the concurring de-
mands of a number also contribute to raise our prices. Thus botb
these questions are in our favor at home, against us abroad. The em-
ploying, however, of our own ships and raising a breed of seamen among
us, though it should not be a matter of so much private profit as some
imagine, is nevertheless of political importance and must have weight
in considering this subject."

This letter, as received by Mr. Livingston, is published in 2 Dip.
Corn, 462.

In the draft I give above are noted some of the more important
changes made by Dr. Franklin before giving the letter to be copied.

In the original draft of Dr. Franklin's letter to Mr. Morris, of July 27,
1783, after speaking of the financial difiQculties which the legation was
under, and the generous conduct of the French " Farmers General" in
withholding all pressure for payment duinng the war, the following is
entered on the margin : " I ought and do as warmly recommend to you
the doing them justice as speedily as may be, and favoring them where
it is practicable, for we are really under great obligations to them."

Franklin MSS., Dept. of State.

"Inclosed is my letter to Mr. Fox. I beg you would assure him that
my expressions of esteem for him are not mere professions. I really
think him a great man, and I would not think so if I did not believe he
was at bottom, and would prove himself a good one. Guard him against
mistaken notions of the American people. You have deceived your-
selves too long with vain expectations of reaping advantage from onr
little discontents. We are more thoroughly ab enlightened people with
respect to our own political interests than perhaps any other under the
heavens. Every man amou;> [us] reads, and is so easy in his circam-
stances as to have leisure for conversations of improvement and for
acquiring information. Our domestic misunderstandings, when we have
them, are of small extent, though monstrously magnified by your micro-
scopic newspapers. He who judges from them that we are upon the
point of falling into anarchy, or returning to the obedience of Britain,
is like one who being shown some spots in the sun should fancy that
the whole disk would soon be overspread with them and that'theie
would be an end of daylight. The great body of intelligence among

952

TREATY OF 1782-'83 WITH GREAT BRITAIN. [§ 150.

our people surrounds and overpowers our petty dissensions, as the
sun's great mass of fire diminishes and destroys bis spots. Do not,
therefore, any longer delay the evacuation of Kew York, in the vaii>
hope of a new revolution in your favor, if such a hope has had any ef-
fect in occasioning the delay. It is now nine months since the evacu-
ations were promised. You expect, with reason, that the people of
New York should do your merchants justice in the payment of their old
debts; consider the injustice you do them in keeping them so long out
of their habitations and out of their business by which they might have
been enabled to make payment.

*' There is no truth more clear to me than this, that the great interest
of oar two countries is a thorough reconciliation. Restraints on the
freedom of commerce and intercourse between us can afford no advan-
tage equivalent to the mischief they will do by keeping up ill humor
and promoting a total alienation. Let you and I, my dear friend, do
our best towards advancing and securing that reconciliation. Wo can
do nothing that will in our dying hour afford us more solid satisfaction.'^

Dr. Franklin to David Hartley, Sept. 6, 1783; Franklin MSS., Dept. of State ;
10 Sparks' Franklin, 1.

The letter to the Mr. Fox, above alluded to, is dated Septembers,
1783, and is in the following words :

''I received in its time the letter you did me the honor of writing to
me, by Mr. Hartley, and I cannot let him depart without expressing my
satisfaction in his conduct towards us, and applauding the prudence of
that choice which sent us a man possessed of such a spirit of concilia-
tion, and of all that frankness, sincerity, and candor which naturally
produce confidence, and thereby facilitate the most difficult negotia-
tions. Our countries are now happily at peace, on which I congratu-
late you most cordially, and I beg you to be assured that as long as I
have any concern in public affairs I shall readily and heartily concur
with you in promoting every measure that may tend to promote the^
common felicity."

In the draft of Dr. Franklin's letter of September 13, 1783, to Mr.
Boudinot, President of Congress (9 Sparks' Franklin, 15; 2 Dip. Corr.,.
484), is the following:

" This court (of France) continues favorable to us. Count de Ver-
gennes was resolute in refusing to sign the definitive treaty with Eng^
land before ours was signed. The English ministers were offended, but
complied. I am convinced that court (of Great Britain ) will never cease
endeavoring to disunite us. We shall, I hope, be constantly on our
guard against those machinations, for our safety consists in a steady
adherence to our friends and our reputation in a faithful regard Uy
treaties, and in a grateful conduct to our benefactors. [The malignity
of the refugees in England is outrageous. They fill the papers with
falsehoods to exasperate that nation against us and depreciate us in the
eyes of all Europe. They may do us some present mischief, but time
and prudence will draw their teeth, pare their claws, and heal the
scratches they are making on our national character.]"

The passage in brackets is marked out in the draft, and does not
appear in the letter as actually sent. But its statement as to the efforts
of the refugees to prevent peace and to embitter the relations between

953

§ 150.] APPENDIX.

Great Britain and the United States is abundantly verified by tbe sub-
sequently published letters and memoirs of Curwen and HutchiDSou.

''The affairs of Ireland are still unsettled. The Parliament and vol-
unteers are at variance ; the latter are uneasy that in the late negotia-
tions for a treaty of commerce between England and America tbe Brit-
ish minister had made no mention of Ireland, and they seem to desire a
separate treaty of commerce between America and that Kingdom.

^^It was certainly disagreeable to the English ministers that all their
treaties for peace were carried on under the eye of the French court.
This began to appear towards the conclusion, when Mr. Hartley refused
going to Versailles to sign there with the other powers our definitive
treaty, and insisted on its being done at Paris, which we in good humor
•complied with, but at an earlier hour, that we might havo time to ac-
quaint le Comte de Yergennes before he was to sign with the Dake of
Manchester. The Dutch definitive was not then ready, and the British
court now insists on finishing it at London or the Hague. If, there-
fore, the commission to us, which has been so long delayed, is still in-
tended, perhaps it will be well to instruct us to treat either here or at
London, as we may find most convenient. The treaty may be con-
ducted even there in concert and in the confidence of communication
with the ministers of our friends, whose advice may be of use to us.

'* With respect to the British court* we should, I think, be constantly
upon our gnard, and impress strongly upon our minds that though it
has made peace with us it is not in truth reconciled either to us or to
its loss of us, but still flatters itself with hopes that some change in tbe
afifairs of Europe, or some disunion among ourselves, may afford them
An opportunity of recovering their dominion, panishing those who have
most offended, and securing our future dependence. It is easy to see
by the general turn of the ministerial newspapers (light things, indeed,
aa straws and feathers, but like them they show which way the wiod
blows) and by the malignant improvement their ministers make, in aU
the foreign courts, of every little accident or dissension among us, the riot
of a few soldiers at' Philadelphia, the resolves of some town meetings,
the reluctance to pay taxes, &c., all which are exaggerated, to represent
our Governments as so many anarchies, of which the people themselves
■are weary, and the Congress as having lost its influence, being no longer
respected. I say it is easy to see from this conduct that they bear as
no good will, and that they wish the reality of what they are pleased
to imagine. They have, too, a numerous royal progeny to provide for,
4Bome of whom are educated in the military line. In these circumstances
we cannot be too careitil to preserve the friendships we have acquired
abroad, and the union wo have established at home, to secure our credit
by a punctual discharge of our obligations of every kind, and ourrepa-
tation by the wisdom of our councils; since we know not how soon we
may have a fresh occasion for friends^ for credit, and for reputation.

^^ The extravagant misrepresentations of our political state in foreign
oountries made it appear necessary to give them better information,
which I thong[ht could not be more eftectually and authentically done
than by publishing a translation into French, now the most general
language in Europe, of the book of Constitutions, which had been
printed by order of Congress. This I accordingly got well done, and
presented two copies, handsomel3* bound, to every foreign minister
here, one for himself, the other, more elegant, for his sovereign. It has

954

TREATY OF 1782-'83 WITH GREAT BRITAIN. [§ 150.

been well taken, and bas afforded matter of surprise to many who had
conceived mean ideas of the state of civilization in America, and could
not have expected so much political knowledge and sagacity had existed
in our wildernesses. And from all parts I have the satisfaction to hear
that our Constitutions in general are much admired. I am persuaded
that this step will not only tend to promote the emigration to our coun-
try of substantial fieoplo from all parts of Europe, by the numerous
copies I shall disperse, but will facilitate our future treaties with foreign
courts who could not before know what kind of Government and x>6ople
they had to treat with. As in doing this I have endeavored to further
the apparent views of Congress in the first publication, I hope it may
be approved and the expense allowed. I send herewith one of the
copies."

Dr. Franklin to Thomas Mifflin, President of Congress, Dec. 25, I7t<3 ; Franklin
MS8., Dept. of State ; 10 Sparks' Franklin, 37, Jf.

*^ I havQ received your favor of the 30th of September, for which I thank
yon. My apprehension that the union between France and our States
might be diminished by accounts from hence was occasioned b3' the ex-
travagant and violent language held here by a public person, in public
company, which had that tendency ; and it was natural for me to think
his letters might hold the sam«3 language, in which I was right ; for I
have since had letters from Boston informing mo of it. Luckily here,
and I hope there, it is imputed to the true cause, a disorder in the brain,
which, though not constant, has its fits too frequent. I will not fill my
letter with an account of those discourses. Mr. Laurens, when yon see
him, can give it to yon; I mean of such as he heard in company with
other persons, for I would not desire him to relate private conversa-
tions. They distressed me much at the time, being then at your earnest
instances soliciting for more aids of money, the success of which solici-
tation such ungrateful and provoking language might, I feared, have
had a tendency lo prevent. Enough of this at present."

Dr. Franklin to Robert Morris, Dec. 25, 1783; Franklin MSS., Dept. of State;
10 Sparks' Franklin, 43.

Mr. Laurens, on February 28, 178 J, in a heretofore unpublished lettei
to Dr. Franklin (Franklin MSS., Dept. of State), writes from London :

'^A large meeting of merchants and West India proprietors are at
this moment assembled to deliberate on the trade between the British
islands and the United States. You will perceive from the contents of
Mr. Edward's pamphlet that the West India planters aud plantation
holders are not a little alarmed. I am promised the result of the
meeting some time this evening ; if it reaches me in time you shall be
informed in a postscript. But it is boldly asserted here by certain per-
sons, instructed as I apprehend by the late ministry, and eucouraged,
perhaps, by the impolitic droppings of a friend, that there is no power
at present subsisting on the part of America to treat for commerce with
Great Britain. I can only reply that I believe this a mistake, and hope
to be soon fully informed. Meantime the United States seem to have
at length felt the efi'ect of the proclamation of 2d July, 1783. No doubt
that of December will be a provoking aggravation. Let our people de-
termine to act wisely, and these conjurers [sic] will soon be compelled
to act with more wisdom and with a little more sincerity than we have
oxperieuced from them in the last eleven months, or so many years."

955

^§ 150a, 150/, 172a.] appendix.

To tbis Franklin replied in a letter from Passy, of March 12, 17S4.
In tills letter occurs tbe following passages (see 10 Sparks' Franklin, 73):

<' I thank yon much for your information of the proceedings of the
West India people. It seems to me that we cannot be much hnrt by
any selfish regalations tbe English may make respecting our trade with
their islands. Those who at present wish to kick the hedgehog will
grow tired of that sport when they find their toes bleed."

In a letter from Mr. Laurens, London, April 18, 1784, to Dr. Frank-
lin (heretofore unpublished), is the following :

<' Nothing further done by administration respecting American inter-
course and commerce. • * * Ajudicious,intelligent friend, who has
been much consulted, called upon me last night and assured me ^ nothing
liberal or to good efifect would be done, or he very much feared so; that
he was tired and would be done with thein. Mr. Pitt is well disposed,
having been well advised, but the weight of the council is against him.'
I feel iio regret on this account. DiMcnlties will have an excellent
effect on our side. I think my countrymen appear to most advantage
when tbey have a rub to encounter, and they seem to be at this mo-
ment taking measures which should have been adopted ui>on the first
appearance of the proclamation of 2d July, 1783. The West India
merchants and planters, every sensible man in trade with whom I con-
verse, every unemployed manufacturer, and many who dread loss ot
future orders, are uneasy, and all will come right when we determine
to act nght.

Franklin MSS., Dept. of State.

§ 150a.
JAY'S TREATY.

For Mr. Hamilton's vindication of the treaty, see Essays of Camillas,
4 and 5 Lodge's Hamilton; 8tfti(7.,3Sli,42I,423. For Mr. Hamilton's
objections to the treaty when first promulgated, see 1 Gibbs' Adm. ot
Washington, &c., 223.

§ 150/.

CLAYTON-BULWER TREATY.

An interesting article on the Clayton-Bulwer treaty is in 99 Quar. Rev.
(June, 1856), 235 ff. This article is attributed by Mr. Hayward (Let-
ters, &Q., 290) to Sir E. L. Bulwer; see, also, article by Sir H. Bulwcr
(Lord Dalling) 104 Edinb. Rev., 280 (July, 185G).

§ 172a.

MATRICULATION AND RESTRICTIONS ON UNITED STATES CITIZENS

ABROAD.

"The attention of the Department has recently been drawn to a
* Notice to Americans ^ published by the legation of the Unite<l States
in Mexico in August last, and of which the following ie a copy:

"^Americans are hereby notified that, in conformity with Article I,
Chapter V, of the Law of Foreigners of June, 1880, foreigners who may

956

NATURALIZATION AND MATRICULATION. [§ 172a;.

have acqaired real estate or have had children born to them within (the)
Sepublic will be considered by the Mexican Government as Mexican
^.itizenSy unless they officially declare their intention to retain their own
nationality and to that effect obtain from the department of foreign af-
fkirs a certificate of nationality on or before December 4, 1886.

<< ' Said certificates may be obtained for Americans through the lega-
tion of the United States in this city. Applications for same must be
accompanied by one dollar for the necessary revenue stamps.

<' ^ (Signed) : Legation of the United States, Mexico, August 20, 1886.'

^^A copy and a translation of the law in question were transmitted to
the Department in Mr. Jackson's No. 241, of the 21st of June last, but
as the dispatch contained copies and translations of other Mexican
laws, to which specific references were made for the Department's
guidance, the provisions of Article I of Chapter V of the Law of For-
eigners, to which no reference was made, were overlooked, until the
notice above quoted, which was not submitted nor communicated to the
Department, was subsequently and only incidentally brought to its at-
tention. A comparison of the notice with the law shows that there are
<^rtain provisions of the latter to which the notice does not refer; but
they do not in any way tend to remove, but rather to increase, the dis-
sent of this Government from the position of Mexico as disclosed in the
notice. The law in question, having been adopted for the purpose of
denationalizing certain classes of foreigners in that country, unless they
take some affirmative action to preserve their nationality, contains a
principle which this Government is compelled to regard as inadmissible.

<<The United States, while claiming for aliens within its jurisdiction,
and freely conceding to its citizens in other jurisdictions, the right of
expatriation, has always maintained that the transfer of allegiance must
be by a distinctly voluntary act, and that the loss of citizenship cannot
be imposed as a penalty nor a new national status forced as a favor by
one Government upon a citizen of another.

"Not only is this believed to be the generally recognized rule of inter-
national law, but it is pertinent to notice that it was accepted and acted
upon by the mixed commission under the convention of July 4, 1868,
between the United States and Mexico. The first umpire of that com-
mission, Dr. Francis Lieber, held, and the commissioners subsequently
followed his decision, that a law of Mexico declaring every purchaser
of land in that country a Mexican citizen unless he expressed a desire
not to become so, did not operate to change, against their will, the na-
tional status of citizens of the United States who had purchased land
in Mexico, but who had omitted in so doing to disclaim an intention to
transfer their allegiance.

" The notice in question is not interpreted by the Department as an
admission by the legation of the defensibleness, on generally accepted
principles of international intercourse, of legislative decrees changing
the national status of foreigners without their consent. Americans are

957

§ 172a.] APPENDIX.

notified that, unless they do certain things, ihey ^ ^11 be considered by
the Mexican Grovernment as Mexican citizens.' This, it is to be ob-
served, does not assert or imply that the legation acceded to the Mexicas
position. Bat in order to avoid any question of this kind hereafter yon
will take occasion to make known to the Mexican Crovemment that this
Department does not regard the publication of the notice above referred
to as admitting the doctrine of involuntary change of allegiance, or that
the same can be held conclusive upon our citizens; and that this Got-
emment is constrained to withhold its assent from that doctrineyas em-
bodied in Article I, Chapter V, of the law referred to.

Mr. Bayard, Sec. of State, to Mr. Mannio^, Nov. 20, 188G. MSS. Inst., Hex.;
For. Rel., 1886.

<^ By article 28, chapter iii [of the Salvadorian law of September 29,
1886], it is provided that matriculation concedes privileges and imposes
special obligations, which are called by the laws of the Bepnblic ^the
rights of foreigners.' These rights of foreigners, as stated in article 2^
of the same chapter, are as follows :

^ 1, To appeal to the treaties and conventions existing between Sal-
vador and their respective Governments.

*< 2. To have recourse to the protection of their sovereign through the
medium of diplomatic representation.

"3. The benefit of reciprocity.

<^ Unless a foreigner possesses a certificate of matriculation no author-
ity or public functionary of Salvador, as has been seen, is permitted to
concede to him any of these rights ; and it is further provided in article
27 of the chapter in question, that the certificate of matriculation shall
not operate retroactively upon a claim of right arising anterior to the
date of matriculation. Thus the object and purport of the law in qaee-
tion is to make the enjoyment and assertion by a foreigner in Salvador
of the consequent rights and privileges of his national character,
whether they are guaranteed by treaty or secured by the general mlee
of international law, conditional upon his contemporaneous possession
of a paper prescribed by the municipal law of the country as the proper
proof of his citizenship.

' '^ In order to appreciate the significance of such a requirement it is
only necessary to consider that, if admitted, its effect would be to leave
the question of the national status of a foreigner wholly to the deter,
mination of the Salvadorian authorities, and that, in the event of his
failure to exhibit such proofs of citizenship as they may deem sufficient
his right to claim the protection of his Government would be lost Con-
versely the right of his Government to interpose in his behalf would
also be destroyed ; for to deny to a foreigner recourse to his Govem-
ernment by necessary implication questions and denies the right of
that Government to intervene.

958

NATURALIZATION AND MATRICULATION. [§ 172a.

" Thus, by making the compliance of a foreigner with a municipal
regulation a condition precedent to the recognition of his national char-
acter, the Salvadorian Government not only assumes to be the sole
jndge of his status, but also imposes upon him, as the penalty of non-
compliance, a Tirtual loss of citizenship.

'^ Nothing would seem to be required beyond the mere statement ot
these propositions, fully sustained as they appear to be by the context
of the law in question, to confirm the conviction that its enforcement
would give rise to continual and probably grave controversies. Such
has been to result of the occasional attempts elsewhere than Salvador
to enforce similar regulations, and such would seem to be the necessary
result of the attempt of particular Governments to enforce laws which
operate as a restriction upon the exercise and performance both by
states and by citizens of their relative rights and dudes according to
the generally accepted rules of international intercourse. Such inter-
course should always be characterized by the utmost confidence in the
good faith of nations, and by the careful abstinence of each from the
adoption of measures which, by operating as a special restriction upon
the action of other Governments in matters in which they have an im-
portantyif not the chief concern, seem to imply distrust of their inten-
tions. It is proper to observe that the Government of Mexico, guided
by the experience of an ample trial of her law of matriculation, modified
it in June last by the repeal of those provisions which made the matric-
ulation of foreigners compulsory and a condition of the exercise of their
right of appeal to their Governments.

" It may be said that the question of citizenship is one which pecu-
liarly concerns the Government whose protection is claimed and in the
decision of which that Government has a paramount sovereign right.
This results not only from the relation of a^ovemment to its citizens,
but from the fact that international law recognizes the right of each
state to prescribe the conditions of citizenship therein and regulate for
itself the process whereby foreigners may, if they so desire, expatriate
themselves and become naturalized. In the United States this process
is defined by a statute, the administration of which is committed to the
courts, who issue to the naturalized citizen certain evidence of his com-
pliance with the law. .The efficiency of this law, the basal principle of
which is the voluntary action of the alien, is fully recognized by all
states that concede the right of expatriation, and among these is Sal-
vador.

"The principle and validity of our naturalization law being thus ad-
mitted, it would seem that the mere question of its administration^ and
of the proper evidence of its administration, was one for the determina-
tion of this Government. But, by the matriculation law of Salvador,
that Government is made the first and the final judge of the sufficiency
of the evidence of American citizenship, even in the case of a naturalized
citizen of the United States not of Salvadorian origin.

059

41 1 7 2a."| APPEXDix.

<^Iii this relation it is i)ertiDelit to advert to the recent case of
Jolio B. Santos, a naturalized citizen of the United States of Ecuador-
ian origin, who was arrested, while residing in his native country, on a
charge of complicity in a revolutionary movement there. The Govern-
ment of Ecuador contended that he had lost his American citizenship by
a residence of more than two years in his native country, under that
article of the naturalization treaty with the United States which pro-
vides that a residence of more than two years in the native country of
a naturalized citizen shall, subject to rebuttal, be construed as an in-
tention on his part to remain there. The United States, however, hav-
ing ascertained and established to its own satisfaction the intention of
Mr. Santos to return to the country of his adoption, held its judgment
in the matter to be conclusive, and demanded for him the rights and
privileges of a citizen of the United States.

^^The effect of the Salvadorian statute in question is to invest the
officials of that Government with sole discretion and exclusive author-
ity to determine conclusively all questions of American citizenship
within tl^eir territory. This is in contravention of treaty right and the
rules of international law and usage, and would be an abnegation of
its sovereign duty towards its citizens in foreign lands, to which this
Government has never given assent.

'^Articles 39, 40, and 41, chapter iv, of the law in question, purport
to define the conditions under which diplomatic intervention is permit-
ted in behalf of foreigners in Salvador whose national character is ad-
mitted. I regret that the Department is unable to accept the principle
of any of these articles without important qualifications.

^^The article first enumerated provides that only in the event of a
denial or a voluntary retardation of justice, and after having resorted in
vain to all the ordinary reoiedies afforded by the laws of the BepnbliCf
may foreigners appeal to their Governments. The succeeding article
defines what is meant by a denial of justice, and declares that soch
denial exists only when the judicial authority refuses to decide the mat-
ter before it; and that, consequently, the fact that a judge may have
pronounced a decision, although it may be said to be iniquitous or in
express violation of law, cannot afford a ground for resort to the diplo-
matic channel.

^'Article 41 declares that delay in the administration of justice is not
to be considered voluntary when the judge alleges any legal or physical
impediment which he is unable to remove.

"The comment made above on the law of matriculation is equally
applicable to these provisions, that the denial to the foreigner of the
right of appeal to his Government necessarily implies the denial in the
particular case of his Government's right to intervene; and as this de-
nial is based upon the decisions of the tribunals of Salvador, the judg-
ments of those tribunals are made internationally binding as to all ques-
tions of municipal or of international law coming before them.

960

CITIZENSHIP. [§ IT 4a.

<'It may be admitted aa a geueral rale of interuatioual law that a
denial of justice is the proper ground of diplomatic intervention. This,
however, is merely the statement of a principle, and leaves the ques-
tion in each case, whether there has been such denial, to be determined
by the application of the rules of international law.

"By articles 39, 40, and 41, as they are understood by this Depart-
ment, the Government of Salvador would avoid this question, especially
where the act complained of was committed by the authorities of tfaie
Bepublic in pursuance of its laws. This doctrine is novel to this Govern-
ment, which has maintained and acknowledged in its treaties and other-
wise, as a settled principle of international policy, the rule that in cases
of violation of international right by the authorities of a state in pur-
suance of municipal regulations, the final decision of the national tri-
bunals, sustaining the action of the authorities, is a consummation of the
wrong complained of and constitutes no bar to international discussion.^

Mr. Bayard, Sec. of State, to Mr. HaU, Nov. 29, 188G. MSS. Inst., Cent. Am.

§ 174a.

IMPEACHMENT OP NATURALIZATION.

The following was inadvertently omitted in the first edition :

<* It is at the same time not to be doubted but that a decree of natu-
ralization, like any other judgment, may be impeached for fraud in its
procurement, by a direct and proper judicial proceeding instituted for
that purpose, and it is equally incontrovertible that the party to such
decree who may have been guilty of fraud in its procurement, and all
persons aiding and abetting him in such purpose, are liable to be pro-
ceeded against criminally and punished under the laws of the United
States, and if the decree of naturalization should be found to have been
procured by fraud, it would, as in the' case of any other judgment thus
corruptly obtained, be set aside and held for naught

<< With the facts now in possession of the Department in regard to
the naturalization of Mr. M — N — , it is difficult, if not impossible, to
resist the conclusion that his pretended naturalization is the result of
a deliberate and preconcerted fraud on his part ; he is now without the
jurisdiction of the United States, where its judicial process cannot
reach him. It cannot be that a fraudulently obtained decree of a courts
which would be set aside if the process of the court could reach and
bring within its jurisdiction the party holding it, is to be considered con-
clusive upon this Government merely because the party has placed him.
self without its jurisdiction, and is availing himself of the first fraud to
practice another. It is the executive department of the Government
to which, in this case, he appeals. The executive department of the
Government must therefore see that the good name and good faith of
the Government be not compromitted by sustaining a claim resting on
fraud and falsehood, and which the courts would set aside, could the
case be brought within their jurisdiction. While the executive depart-
S. Mis. 162— VOL III 61 %\

$ 176.]

ment bow» with deferenoe to the decrees of the jodkaai department
of the Goveniment within the limits of thdr reach, it is not boand to
claim for these decrees in foreign countries when manifestlj obtained
by fraud or perjury, a validity which might not be conceded, and whidi
could neither be enforced or defended on the grounds of truth, or jm-
tico, or equity."

Mr. Fifth, Sec. of SUte, to Mr. Maynard, Feb. 11, 1^6. MSSu Inst., Turkey.

Under Bevi^ed Statutes of the United States, § 2163, an applicant for
naturalization cannot be indicted for perjury as to his residence, the
statute virtually prohibiting taking an. oath as to residence.

(U. 8. V. Grottkaa, 30 Fed. Rep., 672 ; citiDg State r. Helle, 2 Hill, S^C, 290.)

That decree« of natnralization are jnd^menlfl, and that the certificate proTesitMlf,
nee State r. PapeD, 1 Brew»t., 263; 14 Op., £11 (Williams). In McCoppin, i« re, 5 Saw.,
632, the right oi the court decreeing naturalization to open the decree is treated u
nnqaeHtioDe<l. While snch decrees* when on their face valid, cannot he opened or
vacated by the Department of State, they will not, if fonnd by the llepartmeot to
have been granted on the fiiith of fraudnlent misrepresentations by the party oat-
nralizcd, be made the basis of a claim on a foreign power. The Department bM
supreme jnrisdiction, under the directions of the President, of the foreign relstioQs
of the Unite<l States, in condacting which it is not subject to the control of thejodi-
ciary. Sv^pra^ ^ 174a. This has been held to be the case as to the adjudications of

f>nze courts, which it will not press if it believe them to be in conflict with jnsticeor
aw ; and on the same reason ins it refuses to press the awards of even treaty arbi-
trators, though invested with uie highest judicial {towers, when it holds that such
awards ought not to be pressed in Justice or honor. Supra, $ 329a. A fortiori is thus
the case with naturalization decrees, which from the nature of thines must be often
improvidently entered.

§ 176.

ABANDONMENT OF CITIZENSHIP.

<'So far as concerns the evidence contained in the annexed papers,
there can be no question that Jalio B. Santos is a domiciled citizen
of the United States. It is very rarely that in cases of this class such
strong evidence is prodaced. The acqnaintances of Mr. Santos, who
are brought up to testify as to his history and his expectations, are
not persons who would either observe carelessly or speak lightly. They
include a series of college officers and students of high character, with
whom he has ])assed a number of ^^ears, and business associates, who
would best know his plans. It is impossible to ascribe to persons of
this class either want of opportunities of knowledge or want of con-
scientious accuracy. And the case is one of more interest because it
represents a type of much importance to the business welfare both of
the United States and of the countries with which we are brought into
close mercantile relations. It is highly conducive to the beneficial de-
velopments of these relations that in selecting selling and other agents
in a foreign land, our producing and manufacturing houses should be
able to avail themselves of the services of such natives of the countries
to be dealt with as have become citizens of the United States. In this
way we obtain for ourseljv-ed the agent's knowledge of the language
and other conditions of the country to which he is sent, while, from the
fact of his naturalization in the United States, we have a political hold
on him, and ai^ abte^ to some extent, to guarantee his personal rights.

CITIZENSHIP. [§176.

Hence it is a coiumou practice of our great prodacing and exporting
hooses to send to Eorope, as well as to South America, agents who are
natives of the country of their agency, but who have intermediately
become loyal citizens of the United States. There can be no doubt that
this practice has proved very beneficial to the country of the agency,
as well as to the country from which the agent is sent forth. To limit
such an agency to two years would greatly destroy its efficiency. By
the rules of international law, as recognized by all civilized nations, an
agent of this class may live and do business in the place of his agency
(if his intention is to return and dwell permanently in the place from
which he is sent) without acquiring a domicil, or being subjected to a
citizenship in the place of his agency. Nor, so far as concerns citizen-
ship, is this rule modified by the treaty between the United States and
Ecuador."

Opinion appended to instrnotions of Mr. Bayard, Seo. of State, to Mt. Beach,
May 1, 1885. Printed m For. Rel., 1886. See infra, $ 179.

"Mr. B. resided in the United States from 1852 to 1865; and in 1860
appears to have been naturalized here, but, in view of what follows,
no opinion is necessary as to the regularity of this procedare. In 1865
he returned to Spain. Thither he carried his wife, recently married,
there his children were born, and there he has since remained — over
twenty years. The fact that he has never voted or held office in Spain,
or taken par£ in any political demonstration there, may show that he is
not a zealous Spaniard, but does not prove him to have been a loyal
citizen of the United States.

" While there is no allegation that he intended to return to the United
States, the inference to the contrary is rendered very strong by his
settlement in Spain after his marriage, the selection of Spain as the
place of his children's birth and education, and by his failure even
now to make any effort to return. Moreover there is no evidence that
he ever contributed by payment of tnxes or otherwise to the support
of this Government. The facts farnish a presumption, not. rebutted,
that he has abandoned his nationality, involving his minor children in
the same abandonment. Under these circumstances thus understood
the legation will not accede to the request by Mr. B. for a United States
passport."

Mr. Porter, Acting Sec. of State, to Mr. Carry, Jan. 4, 1886. MSS. Inst., Spain.

^< In this case, as in Wedemeyer's and several others of recent occur-
rence, the Department is indisposed to intervene. Generally speaking,
when a German, naturalized in the United States and returning to
Germany, voluntarily applies to be reinstated in his German subjec-
tion, and only appeals to the legation for protection as an American
citizen when the native authorities decline to readmit him as a Ger-
man, the evidence of his devotion to the United States is not strong.
It would in such cases be as reasonable for us to intervene to demand
that Germany take back the applicant as to demand that he may in-

963

§179.] APPENDIX.

definitely reside in Germany under the thin guise of a citizenship he
sets no store by and has attempted to renounce."

Mr. Porter, Acting Sec. of State, to Mr. Pendleton, Feb. 2, 1886. MSS. Inst,.
Qerm.

$170.

PRESUMPTION FROM TWO YEARS' RESIDENCE.

" The provision in respect of two years' residence in the original coao-
try« after retnrn thither, which is found in most of our naturalization
treaties, is designed to afford presumptive evidence merely of the in-
tent which is necessary to a valid resumption of the original allegiance.
That presumption, like any other presumption, is open to rebuttal by
satisfactory evidence, and the right of such rebuttal is inherent in tbe^
case and available in the party's behalf, even where the treaty may be
silent on the point In our treaty with Ecuador, however, the right of
rebuttal of the presumption of intent which may grow from two years'
residence is expressly stipulated, and this point is therefore removed
fnAn the field of argument.

" It is part of the sovereignty of every nation to prescribe the terms on
which the allegiance of its own citizens shall be acquired and preserveiL
In the treaty with Ecuador the United States waive a part of such right
of decision by admitting that two years' residence in Ecuador may create *
a presumption that their citizen intends to remain there. By stipulating
for the right of rebuttal evidence on this point of intention, the United
States wholly and absolutely regain that right of deciding as to tbe
status.of their citizens in a given case. That right is not transferred in
any part to Ecuador; it is to be exercised exclusively by the United
States as an attribute of their sovereignty. And Ecuador cannot meet
that reserved right by any mere denial of the sufficiency of the rebut-
ting evidence which may be satisfactory to the United States. The
only privilege of surrebuttal which might remain open to Ecuador would
be to show that the party had done some act working an overt, volun-
tary, and positive renunciation of his United States citizenship of which
tbe laws of Ecuador take cognizance, or which they may prescribe as a

condition to the acquisition or recovery of Ecuadorian citizenship.

• • •

^* This Government has pushed its construction of the sufficiency of the
rebutting evidence beyond the needs of what would have been enough
in any ordinary case in order that its conclusion, when reached, should
not only be final as of right, but convincing also to the (Jovemment of
Ecuador, to which it may be communicated as a matter of courtesy."

Mr. Bayard, Sec. of State, to Mr. Beach, May 1, 1885. For. Rel., 1881:. Se»
8upra, App., ^ 176.

"Nor does this Government concur in the proposition that a natu
ralized citizen of the United States can have such citizenship extin-

964

CITIZENSHIP. [§§ 185, 189.

gui^hed solely by residence, however protracted, in the country of his
origin. The question of his loss of such citizenship is to be deter-
mined by the intent of the party, to be inferred from his acts and all
the surrounding circumstances of the case, and is not to be conclusively
settled by mere lapse of time or term of residence in the country of his
origin. We maintain this as a rule of international interpretation of
naturalization treaties, and in the case of Germany have lately held
that two years' stay creates only a presumption of abandonment of the
acquired citizenship, which is open to rebuttal."

Mr. Bayard, Sec. of State, to Mr. Winoheeter, May 17, 18d6. MSS. Inst.,
Switz. See App., vol. ill, $ 172a.

§185.
CHILD BOBN ABBOAD.

^* By the law of nations, apart from any municipal legislation, he (a
<;hild bom in France to a citizen of the United States, such child hav-
ing always resided in France) would be entitled, when of full age, to
«lect which of the two allegiances he will accept; and with the law of
nations in this respect coincides, according to your dispatch, the muni-
<iipsA law of France. But this election cannot be made by Victor La-
broue until he arrives at full age, in September, 1886, and the election,
to be operative, must not only be formally and solemnly declared, but
must be followed by his coming to and taking up his abode as soon as
is practicable in the United States. Should he remain voluntarily in
France after the period when the French law as well as the law of na-
tions requires him to make his election, this may properly be regarded
as an abandonment of American and an acceptance of French allegi-
ance."

Mr. Bayard, Sec. of State, to Mr. Vignaad, July 2, 1886. MSS. Inst., France ;
For. Bel., 1886.

§189.
PBOTECTION TO CITIZENS ABBOAD.

" I have to acknowledge the receipt of your note of January 19, 18S7,
making certain inquiries as to the citizenship of Charles Dewaele and
of Emile Dewaele, his son.

" Great as is my desire to give any information which it is within
the range of my duties to communicate, I feel compelled to say that the
information you request is not within such range. The reasons are as
follows :

^^ (1) When there is an issue likely to arise between an alleged citi-
zen of the United States and the Government of a foreign country in
which he resides, the question whether the position taken by the for-
eign Government is to be resisted by such citizen, as well as the quali-

965

§§ 208, 213.] APPEXDix.

ficatioDft attending his position in sach respect, are to b^ determined
primarily by himself. This Ctovemment, for instance, wonld say to
snch a party, ^ Whether yon abjure your allegiance to as. or whether
yon render a qualified submission in the performance of local, dnc, or
military duties, is for you in the first place to determine.-

. << (2) Questions of this class are acted on by this Department, adopt-
ing the practice of the judiciary under similar circumstances, on the
basis of affidaviCs, and other documentary evidence exhibiting the exact
state of facts, which affidavits and evidence a foreign sovereign could
not be called upon to produce.

^^(3) It is not in accordance with the i)olity of our institutions that
the question of the citizenship of a person claiming, or likely to claim,,
the protection of the United States, should be determined ex parte by
this Department on the application of the Government against whoin
snch protection may be sought. Citizenship in the United States has
two aspects. On the one side, in this country, it carries with it electoral
privileges, and other prerogatives and immunities, as to which the natur-
alized citizen, no matter how destitute in other respects, has the same
political rights with native-bom citizens, no matter what may be their
other advantages. On the other side, it gives such citizens, when abroad,
the right to the protection of the United States to the full extent of its
capacity, against foreign powers. Such rights cannot be divested unless
on a hearing in which the party whose citizenship is questioned is noti-
fied to appear ; and, in so far as the question of protection is concerned,
they can be denied in this Department only on issue made by the party
himself, after a fuU hearing of his case, with every opportunity given
to him to present it in detail."

Mr. Bayaid, Sec. of State, tolf r. de Bounder de Mekbroeck, Apr. 11, 1887. IfSS.
Notes, Belginm.

§208.
NOBTH AMEBIGAN nVDIANS.

Indian tribes in the United States are subject to the laws of Oongresfl^
but not, as tribes, to State legislation.

U. 8. V. Kagama, 118 U. 8., 375.

§213.

PSBSBNTATION OF CLAIMS.

<' While this Department is at all times ready to lend the good offices
of its representatives abroad lor the presentation of all valid claims
founded on justice and equity of its citizens upon foreign Governments
in accordance with its established regulations, and also to assist in the
promotion of American interests in all proper cases and by those meth-
ods known and approved internationally, yet it is not unmindful of the
concurrent obligation imposed by our professions of amity and comity

AWARDS: SPOLIATIONS. [§§ 221, 223.

with other nations, as well as by the injunctions of our own self-respect,
upon which we invite those nations confidently to rely, which should
secure such previous scrutiny and examination of the law and facts upon
which such claims are based by their proponents as shM prima facie
assure both parties of their justice." • • •

^'To discriminate against speculative and unjust claims by our citizens
upon foreign Governments and in favor of those founded injustice and
equity, will cause our recommendations to have that weight which we
desire, and create confidence in our international action."

Mr. Bayard, Sec. of State, to Mr. Jarvis, Sept. 6, 1886. MSS. Inst., BrazU; For.
Bel., 1886.

$221.

AUTHORITY OP AWARDS.

The action of the Department of State in referring a claim to arbitra-
tion by the United States against a foreign power does not bind it to
the position that the claim is just. The whole question of the justice of
jthe claim is open to revision on the facts and arguments reported by
the arbitration. Kor are the arbitrators precluded, by the fact of refer-
ence, from examining into the justice of the claim on its merits.

Mr. Bayard, Sec. of State, report on Pelletier*8 case, Jan. 20, 1887. Sen. Ex.
Doc. 64, 49th Cong., 2d seas.

'^The duty of the Executive to refuse to enforce an award which, not-
withstanding the unimpeachable character, as in the present case, of the
arbitrator, turns out to have been inequitable or unconscionable, has
been maintained in repeated rulings of this Department, and is sanc-
tioned by the Supreme Court of the United States."

lUd,
Ab to rM adjndioataf see ifi/ra, $ 238 ; and as to control by Department of such
cases, see vol. li, $ 220.

§223.

DOMESTIC BELLIGERENT INJURIES TO ALIEN RESIDENTS.
See iitfra, $ 243.

A Government is responsible to foreign friendly Governments for out-
rages committed by its soldiers, as such, on subjects of such Govern*
ments.

''The mere fact that soldiers, duly enlisted as such, commit acts with-
out orders from their superiors in command, does not exempt their
Government from liability for such acts. A Government may be re-
sponsible for the misconduct of its soldiers when in the field, or when
acting, either actually or constructively, under its authority, if such
misconduct, even though it had been forbidden by it, was in contraven-
tion of the rules of civilized warfare."

Mr. Bayard, Sec. of State, to Mr. Back, Aug. 24, 1886. MSS. Inst., Pern.

967

§§ 228, 235.] ^PENDix.

<'<If in that (a foreign) coantry,' said Mr. Webster, 'he (a citizen oi
the United States) engages in trade or basiness, he is considered by the
law of nations as a merchant of that country;' and in this and other
cases ruled in this Department on this principle, it was held that citi-
zens of the United States who engaged in insurrectionary movements
in Cuba thereby exposed their property to seizure by Cuban author-
ities, and had no claim on this Government to secure indemnity for them
from Syain. Nor can Spanish subjects (under similar circumstances)
make clairi) against the United States for losses incurred by them
through confiscation of their goods by the Federal authorities in the
late civil war, such confiscation being in conformity with the laws of
war."

Mr. Bayard, Seo. of State, to Mr. Maruaga, Dec. 3, 1886. MSS. Kotes, Spain.
See more foUy infra, $ 356.

§228. (

FOBBiaN BBLLIGBBENT'S liability to mSUTBAL BBSIDBNT.

*< It is not disputed that a neutral person domiciled in a belligereat
country cannot claim from tjje opjMwing belligerent redress for injniy
inflicted by the latter in due course of war. The present case, however,
is taken out of this rule by evidence herewith forwarded, showing that
the injuries in question were not inflicted in due course of war, bat
were in violation of the rules of civilized warfare. For such violations
of international duty the sovereign of the injured neutral has a right
to call for redress."

Mr. Bayard, Sec. of SUte, to Bfr. HaU, May 27, 1886. MSS. Inst., Cent. Am.
See $ 225.

§236.

INJUBIES TO BEAL ESTATE.

The Haytian Government is liable for damages wantonly inflicted, bj
soldiers in its employ, on real estate belonging to citizens of the Unit^
States. Nor is it a defense in such cases '' that by the Haytian law
foreigners cannot 'acquire' (acqu6rir) real estate in Hayti, and that as
they had no title to the real estate for injury to which they sue they
cannot now claim damages for such injury. To this the answer is
threefold :

*' 1. The statute only prohibits * acquiring,' which is a term convertible
with '))urchasing.' It does not cover the case of real estate coming by
descent.

<<2. By the Boman law, in force in Hayti, an alien's title, even as to
^purchased' real estate, can only be contested by suit brought by the
Government itself in the nature of an inquisition. If the Oovemment
undertakes to turn the possessor out by violence without a trial, this
makes the Government liable for damages in proportion to the violence

968

H^S ADJUDICATA. [§238.

applied and the damage done. And for such summary outrages on an
alien, cu an alien^ the Grovernment of such alien has, by international
law, a right to interpose and claim redress.

' ^3. Even supposing that the prohibition extended to the house and lot
of the claimants (which, for the present purpose, it did not) it did not
preclude the claimants from possessing furniture, or leading lives of quiet,
secure from lawless attack. In any view, therefore, the statute before
us does not prevent the claimants from recovering damages for the de-
struction of their furniture, their expulsion from their homes, and the
peril to which their lives were subjected.

Mr. Bayard, Seo. of State, to Mr. Thompson, Mar. 9, 1886. MSS. Inst., Hayti.

§ 238.
RES ADJUDICATA.

^^This decision of the commission [dismissing a claim for want of juris-
diction] does not prevent this claim from being a proper subject for
diplomatic treatment. It is true that Mr. Acosta's naturalization, the
validity of which was admitted by the advocate for Spain, on the 30th
October, 1882, was subsequent to the exeOlitive order of sequestration
of his property by about five months. But while for losses accruing
prior to his naturalization he cannot claim such interposition, it is other-
wise as to losses accruing subsequent to his naturalization. The caAe
may be likened to a series of continuous injuries sustained by a person
before and after reaching full age. The disabilities attaching to him as
a minor, however much they might prevent him by the lex fori from
suing when a minor, would not preclude him from suing when of full
age in his own name, at least for damages sustained subsequent to his
majority. Hence the claimant in the present case, as to matters not
barred by the decision of the arbitrators, is entitled to the intervention
of this Department, at least for injuries sustained by him subsequent
to his naturalization."

Mr. Bayard, Sec. of State, to Mr. Curry, Apr. 9, 1886. MSS. lust., Spain..

'* It is a settled principle of international law that a sovereign cannot
be i>ermitted to set up one of his own municipal laws as a bar to a claim
by a foreign sovereign for a wrong done to the latter's subject.

Mr. Bayard, Sec. of State, to Mr. King, Oct. 13, 18rt6. MSS. Inst., Colombia.
Supraj $ 60 ; infra, $ 242.

'' Decisions of international commissions are not to be regarded as
establishing principles of international law. Such decisions are molded
by the nature and termsof the treaty of arbitration, which often assumes
certain rules, in themselves deviations from international law, for the
government of the commission. Even when there are no such limita-
tions, decisions of commissions have not heretofore been regarded as
authoritative, except in the particular case decided. I am compelled,

969

§ 238.] APPENDIX.

therefore, to exclude from consideration the ralings to which you refer,
not merely because they do not sustain the position for which they are
cited, but because, even if they could be construed as having that
effect, they do not in any way bind the Government of the United
States except in those cases in which they were rendered."

Mr. Bayard, Sec. of Stat^ to Mr. Maraaga, Dec. 3^ 1886. MSS. Notes, Spain.

^^Action of this class can no more be regarded as res adjudicata than
can the preliminary binding over of a defendant, on the bare case of the
prosecution, be regarded as res adjudicata when the case, both sides
being in court, comes on for trial. Now for the first timei has Pelletier's
claim, together with Hayti's reply, appeared for adjudication in this
Department ] and with this full case before me, and with this very
question reserved by the learned arbitrator who has made the award, I
report that, in my judgment, after carefully reviewing the proofs, the
claim, for the reasons t have stated above, cannot be entertained by the
United States. And I may add that in this particular case^. my opinion
is sustained by the report of the Senate committee, by whom both
sides were heard, and, on the question of disturbance of port tran-
quillity, by numerous adjud^ations of this Department.

<' It may be finally urged that the award in the present case is con-
clusive and cannot be disturbed. But this proposition cannot be main-
tained. No matter how solemn and how authoritative may be a judg-
ment, it is subject to be set aside by the consent of the parties. To
the awards of international commissions, were the award in this ca^e
to be considered as such, this position applies with peculiar force, since,
as is elsewhere noticed in this report, it is a settled principle of inter-
national law that no sovereign can in honor press an unjust or mis.
taken award even though made by a judicial international tribunal in.
vested with the power of swearing witnesses and receiving or rejecting
testimony. But the award before me is not that of a judicial inter-
national commission invested with such powers.

^^ To constitute such a tribunal, either a treaty, duly approved by the
Senate so as to be the law of the land, or an enabling statute, is neces-
sary. The judicial and the executive departments are distinct, and un-
less by a treaty or an act of the legislature, in subordination to the
Oonstitution, the fnnctions of the former, so far as concerns the deter-
mination of litigated issues of fact, cannot be vested in the latter. The
Department of State, therefore, cannot either through its own officers
or a commission appointed by it, take ajnd mold sworn testimony in
order to determine litigated issues of fact. Hence the conclusions of
an international commission, sanctioned solely by the executive de-
partment of the Government, are to be regarded, to adopt the language
of a learned judge of the Supreme Oourt, as an award ^ which would
have bound nobody and would have been at most a friendly recom-
mendation.' (Miller, J., Great West. Ins. Co. v. U. S., 112 U. S., iWi

970

RES ADJUDICATA. [§238.

It does not cure the proceedings in the present case that the distin-
guished gentleman who acted as arbitrator administered oaths to wit-
nesses, issued commissions, aud determined as to what questions were
to be put to witnesses, in this way shaping the testimony produced.
In the opinion of this Department these proceedings, so far as they
were mattersof distinctively judicial prerogative, were ultra vire8, and
so was the judgment entered, so far as it partook of a distinctively ju-
dicial type.

^' In taking this position I am in no way impeaching the right of the
Executive, either through the Secretary of State or through agents
appointed by &im, to negotiate the settlements of private claims with
foreign powers. Such negotiations may be likened to the conferences,
in matters of private litigation, of parties through their counsel or
through referees, to settle, on the ba«is of affidavits or voluntary state-
ments of the parties, the matter in dispute.

'^ Informal conferences of this class have been found, and will be found
hereafter, of great use. But not being in the shape of a treaty they do
not, in the United States, have the effect of a law investing the officers
in question with the judicial power of taking and limiting testimony
and deciding judicially on the questions submitted to them. Hence the
awards of such tribunals, being inchoate and merely recommendatory,
are to be regarded as less obligatory than are awards made under
treaties. And as awards under treaties when the arbitrator had judi-
cial powers, and when the witnesses testifying could be held criminally
responsible for false testimony, will not be enforced if shown to be un-
conscionable and unjust, a fortiori is this the rule with awards in cases
in which the arbitrator had no judicial powers, and when the oaths ad-
ministered were nullities."

Mr. Bayard, Sec. of State, report in Pelletier's case, Jan. 20, 1887. Sen. Ex.
Doc. 64, 49th Coug. 2d seas. See also «iipra, $$ 220,221.

*< It remains to notice the position that a re-examination of the merits
of this case is precluded by the announcement of the President, in his
annual message of 1885, that the arbitration had closed and a final
award been given. But such an announcement no more precludes such
a re-examination than an announcement of the close of the late Mexi-
can Commission precluded a re-examination of the Weil and La Abra
cases, or an entry of a judgment by a court precludes the hearing of a
motion to open such a judgment on proof of fraud or mistake. I must
repeat in this connection the position with which this report opened,
that, essential as it is that the intercourse between nations should be
marked by the highest honor as well as honesty, the moment that the
Government of the United States discovers that a claim it makes on a
foreign Government cannot be honorably and honestly pressed, that
moment, no matter what may be the i>eriod of the procedure, that claim
should be dropped."

PeUetier's case ; IMd,

971

§ 239.] APPENDIX.

§239.

LIMITATION OF CLAIMS.

^' The same presamption ma^* be almost as strongly drawn from the
delay in making application to this Department for redress. Time,
said a great modern jurist, following therein a still greater ancient
moralist, while he carries in one hand a scythe by which he mows
down vouchers by which unjust claims can be disproved, carries in the
other hand an hour-glass, which determines the period after which, for
the sake of peace, and in conformity with sound political philosophy,
no claims whatever are permitted to be pressed.

'' I'he rule is sound in morals as well as in law ; and applies with i)eca
liar force to claims infected with taints which the claimants refa;4e to
submit to judicial examination when the facts are attainable."

Mr. Bayaid, Sec. of State, to Mr. Maraaga, Deo. 3, 1886. MSS. Notes, Spain.

WhUe international prooeedlniirs for redress are not bonnd by the letter of specific
statutes of limitations, they are subject to the same presamptions, as to payment or
abandonment, as those on which statutes of limitation are based. A GoTemment
cannot any more rightfully press against a foreign Goyemment a stale claim which
the party holding decUned to press when the evidence was fresh than it can pennit
each claims to be the subject of perpetual Utigation among its own citizens.

It must be remembered t^iat statutes of limitations are simply formal expreauoni
of a great principle of peace which is at the fotmdation not only of our own common
law, but of all other systems of civilized Jurisprudence. It is good for society that
there should come a period when litigation to assert aUeged rights should cease; and
this principle, which thus limits litigation when wrongs are old and evidence Med.
is as essential to the administration of Justice as is the principle that sustains Iitig».
tion when wrongs are recent and evidence fresh. *' Rules for the application of nch
limitations," said Mr. Justice Swayne in Wood v. Carpenter, 101 U. S., 139, ''are Tital
to the welfare of society and are favored in the law. They are found and approved
in all systems of enlightened J arisprudence. They promote repose by giving aecarity
and stability to human affairs. An important public policy lies at their foundstion.
They stimulate to activity and punish negligence. While time is constantly deetroy-
iug the evidence of rights, they supply its place by a presumption which renden
proof unnecessary. Mere delay, extending to the limit prescribed^ is itself a codcIu-
sive bar. The bane and antidote go together."

In the English common law, long before statates of limitation took formal shape,
this principle of peace was applied in the rulings that indebtedness, which has existed
for so long a period as to enable its payment or its extinguishment to be logicallj in-
ferred, is to be presumed to have been paid. What this period is varies, so it has always
been held at common law, with extraneous conditions. In uewly-settled commnni-
ties, or in communities in which men come and go on comparatively brief boeinew
errands, the period in which a debt is presumed to be still alive is much shorter than
it would be in a community of persons of continaous residence, of settled boaineM
habits, and with facilities which enable the vouchers of the past to be carefoily
gaarded, and witnesses of past transactions to be, within the ordinary limits of life,
appealed to. When the question is one of diplomatic negotiation, then the circum-
stances of the nations interested, as well as of individual claimants, is to be taken into
consideration ; the fact of intermediate war, for instance, when it does not extingoiah
a claim, operates to excuse delay in pressing it. Bat, in aU cases, when the rale to be
applied is not one of statute, but of common or public law, then the question of the
piesumption of the effect on indebtedness of lapse of time is one to be settled by tak*

»12

_ .^

CLAIMS. [§§241,242.

log into consideration not merely the general principle of peace above stated, bnt all
the conditions which wonld divert the application of that principle to the particnlar
case.

The application of these principles to onr consular courts in China is considered
tupra, i 125.

§241.
NON-USE OF JUDICIAL BEMEDT.

" As, ander the principle of United States v. O'Keefe, 11 Wall., 178,
the claimants had access to the Coart of Claims within the limit speci-
fied, to purge themselves, at a time when the evidence bearing on the
question was fresh, from the charge of aiding and comforting the Con-
federacy, it is impossible not to view tbeir failure to avail themselves of
that opportunity, and their holding back their claim-for twenty years as
greatly strengthening that charge I do not desire to insist, as I well
might under the circumstsiuces, that the claimants are barred by the limi-
tations of the statute. Municipal limitations undoubtedly donotas a gen-
eral mlebaran international claim. It may, however, be rightfully main-
tained, as has frequently been done by both this Government and that of
Great Britain, that when a sovereign rests his administration, sofer as
concerns claims against himself, primarily on his judiciary, and when such
tribunals are open to aliens for redress, to them aliens claiming to be
aggrieved should at first resort. I do not desire, however, to confine
myself to this position, but I maintain that when claimants on whom
ostensibly rests the charge of aiding an insurrection against the United
States, decline to present their claim before a tribunal before which,
when the evidence was on all sides attainable, the charge could have
been judicially disposed of, and then wait twenty years before bringing
the claim before this Department, which, by reason of its organization^
has no means of taking te8timon3' as to disputed facts, and which, even
if it could, would at this late date find these facts obscured by the lapse
of time, then such claimant cannot, under that common system of ethical
jurisprudence which is acknowledged by Spain as well as by ourselves,,
be admitted to a hearing unless they produce a strong array of testi.
mony to disprove their culpability, and give satisfactory explana-
tion for their delay in presenting their case. The same presumption
may be almost as strongly drawn from the delay in making application
to this Department for redress."

Mr. Bayard, Sec. of State, to Mr. Moraaga, Dec. 3, 1886. MSB. Notes, Spain*
Ab to limitations, see supra, $ 239.

§242,

SOYEBEIGN NOT PBOTEGTED BT WBONGFUL DEOBEES OF HIS

COUBTS.

<^The position that a sovereign is internationally liable for rnlings of
bis courts, in violation of international law, was taken by us early in
the wars growing out of the French Bevolution, and was finally acceded

973

§ 243.] APPENDIX.

to by the British Oovernment against whom it was advanoed. It was
ako accepted by us, as respondents, after the late ciTil war, when, the
relations of the parties bein^ reversed, we agreed that we could not
set up as a bar to a British claim for damages for illegal seizure, a de-
cision of oar courts that the seizore was legaL It is impossible for as
to yield to Mexico a principle that we saccessfully maintained against
Great Britain when she was belligerent and which we yielded to her
when she was neutral.

'^The question, then, in the present case, is whether the ruling of the
Mexican court sustaining the seizure in question was right by inter-
national law. And I have no hesitation in instructing you that the
seizure was wrong by that law, since it was virtually an execution
issued in a suit in which not only was a hearing refused to the defend-
ant, but in which an offer on his part to produce testimony which would
have exculpated him was followed by an order of court directing his
arrest. Such action was in itself a gross violation of those rules of
justice which, in order to give judgments international validity, require
that the parties should have full opportunity to be heard. If so^such
judicial action is jio more a defense to the Government of Mexico than
would be an order for the same seizure if issued wrongfully by the ex-
ecutive department of that Government. As a foreign sovereignty we
cannot inquire by what municipal agency of Mexico the wrong was
done. To us the Government of Mexico is a unit, and responsible for
whatever wrongs either of its several departments may inflict upon us.

^^It may be said that the position here taken is inconsistent with the
rule frequently declared by this Department, that when a Government
opens its courts to alien suitors in claims against itself or its officers, the
judicial remedy must be exhausted by aliens who feel themselves ag-
grieved before they can rightfully apply to their own sovereigns to in-
tervene. But the two positions are not only consistent, but one supple-
ments the other. In the present case, for instance, it was the duty of
the claimant, if possible, to exhaust his remedy in the Mexican courts
before he came to this Department for its intervention. But when he
was precluded from so doing by the adverse proceedings instituted
against him by the Mexican authorities, by which he was prevented
from making out his case, we must hold that justice was not only denied
him, but denied in violation of settled principles of international law.
It then becomes the duty of this Department to intervene in his behalf
and to press his claim on Mexico as a debt which Mexico is bound to pay.''

Mr. Bayard, Sec. of State, to Mr. Jackson, Sept. 7, 1886. MSS. Inst., Mex.
See also $ 329a, as to prize courts and as to Rebecca case, supra, $ 60.

§243.
CULPABILITY OF CLAIMANT.

For an alien, or his agents, to contribute towards investing in cotton
subject to the control of the Confederacy was, under the circumstancefi,

974

' MARRIAGES ABROAD. [§261.

giving '^ald aud comfort to the enemy of the United States,'' and there
fore no suit can be maintained on such a cause of action.

Field, J. Radich v. Hatchins, 95 U. 8., :i212; adopted by Mr. Bayard, See. of
Slate, to Mr. Maruaga, Dec. 3, 1886. MSS. Notes, Spain. See infraj $ 356.

^' On the general question of turpitude of cause of action as barring
the present claim, I am now prepared to give an emphatic, and, I trust,
final decision. Even were we to concede that these outrages in Haytian
waters were not within Haytian jurisdiction, I do now af&rm that the
claim of Pelletier against Hayti, on the facts exhibited, must be dropped,
and dropped peremptorily and immediately, by the Government of the
United States. ^The principle of public policy,' said Lord Mansfield,
in Holman v, Johnston, Oowper's Bep., 343, ' is this : Ex dolo malo non
oritur actio. 'No court will lend its aid to a man who founds his cause
of action upon an immoral or an illegal act.' Ex turpi cau9a non oritur
actio; by innumerable rulings under the Roman common law, as held
by nations holding Latin tfaditions, and under the common law as held
in England and the United States, has this principle been applied. The
lex fori determines the question of turpitude; and. nowhere, and with
better reason, has the slave-trade been stamped with* such infamy and
turpitude as in England and the United States."

Mr. Bayard, Sec. of State, report in Pelletier's case, Jan. 20, 1887. Sen. Ex.
Doc. 64, 49th Cod^., 2d aess.

§261.
SOLEMNIZATION OF MABBIAGE.

^< Information has reached the Department that it is the practice with
some of its diplomatic and consular representatives to issue, at the re-
quest of American citizens proposing to marry abroad, certificates as to
the freedom of such parties from matrimonial disabilities, and as to the
law in the United States regulating the mode of solemnizing marriage.

^^^Waiving other objections to certificates of this class, it is enough
now to say that the practice of issuing them is objectionable, because
they may contain erroneous statements which may be productive of diffi-
culty.

^' Diplomatic aud consular agents can ordinarily certify in respect to
the matrimonial disabilities of individu ils {e, g,, as to prior marriage or
parental control) upon hearsay only aud therefore unreliably.

^^ In certificates as to the laws in the United States regulating the
solemnization of marriage the possibilities of error are great and mani-
fest. Of these laws no accurate or reliable summary could be given.
It is essential, for instance, to the validity of a marriage solemnized in
Massachusetts aud other New England States, that it should be solem-
nized by a local clergyman or magistrate after a license taken out in the
office of the town clerk, which is virtually a publication. In other States,
it is alleged, it is necessary to the ceremony that it should be solem-

975

§ 261.] APPENDIX.

nized by a minister of the Gospel, lo most States a marnage by con-
sent, so far as concerus ceremonial form, is valid; bat even in these
States law is freqaently undergoing alteration.

^^Serions conseqnences may ensne from errors made in this relation
in diplomatic or consnlar certificates. A foreign local official may solem-
nize a marriageon snch a certificate ; but, when a qnestion involving the
validity of the marriage arises in a superior court of law it may well
be decided that snch certificate cannot prove matters of fact, nor the
law in that particular State, Territory, or district of the United States
in which the parties were domiciled.

^^ The issue of these certificates is not authorized by statute nor by the
instructions to diplomatic agents or consuls.

*^The withholding of such certificates may prevent serious disaster.
If citizens of the United States desire to be married before a foreigo .
officer who requires information as to their individual status and the laws
of their domicil, the information can be obtained from persons familiar
with the fEM^ts, or from experts acquainted with the laws of such domicil;
and in matters involving the validity of marriages, and the legitimacy
of children, too great trouble in this respect cannot be taken.

'^To the position that it is not competent for diplomatic or consular
officers to state the law of the United States as to marriage, there i«,
however, one important exception to which your attention has been here
tofore directed. Throughout the United States is recognized the priDci-
pie of international law that a solemnization of marriage valid by the law
of the place of solemnization will be regarded as valid everywhere.
Hence, where persons domiciled in any part of the United States pro-
pose to be married in a foreign land, the forms of solemnization pie
scribed by the law of the domicil are of consequence only when the law
of such foreign land adopts th^bse forms as sufficient.

'^ Nothing in this order is intended to preclude a chief diplomatic
representative of the United States, having obtained permission of tlie
Department for that purpose, from certifying as to the law of any par-
ticular jurisdiction in the United States when called upon by a jadicial
tribunal, or a consul, who is an expert as to such law, from testifying
thereto when called upon in a court of justice, or from certifying thereto
when excused from testifying in such court."

Mr. Bayard, Sec. of State, circular to diplomatic and consular officers, Feb. 8,

1887.

ORDER JSD BY THE SECRETARY.

'^ It is not competent, without the special authority of this Department,
for diplomatic agents, consuls, or consular agents, to certify officially
as to the status of persons domiciled in the United States and proposing
to be married abroad, or as to the law in the United States, or in any
part thereof, relating to the solemnization of marriages.

976

MARRIAGES ABROAD. [§261.

^^ By the law of nations the forms of solemnization of a marriage mast
be in accordance with the law of the place of solemnization, and the only
exceptions ai^ when those forms are such as the parties cannot consci-
entiously comx)ly withy or when the solemnization is in a barbarous or
semi-civilized land. It is true that it is said by some authorities that
a marriage in a foreign legation is governed only by the laws of the
country such legation represents, but this is so much a matter of doubt
that the British foreign office has instructed its diplomatic agents that
although such marriages, performed in British legations, are valid in
Great Britain by statute, their validity elsewhere cannot be assumed.
Under these circumstances you very properly declined to sanction the
solemnization of the marriage in question until you have information
that it would be solemnized in conformity with Belgian law. Whether
the marriage as actually solemnized is valid it is not the province of this
Department to decide.

<< Questions of private international law as to the p^st are for the
judiciary; it is as to the future, and this only by way of caution, that
this Department in such matters speaks."

Mr. Bayard, Seo. of State, to Mr. Tree, June 5, 1886. MSS. Inst., Belgiain.

<<I have before me your No. 462, of date of the 18th ultimo, and note
your comment upon a circular order lately issued by this Department,
that 4tis not competent, without special authority of this Department,
for diplomatic agents, consuls, or consular agents to certify officially as
to the status of persons domiciled in the United States, and proposing
to be married abroad, or as to the law of the United States, or any part
thereof, relating to the solemnization of marriages.'

^^Among the causes which induced this order were statements made
to this Department that not only had the law as to marriage in the
United States been erroneously certified to by its representatives abroad,
but that for such certificates excessive fees had been exacted. Printed
certificates had also been issued by certain United States consuls in
Europe, which stated, without qualification, that in no part of the
United States are banns, or prior publication, or the assent of parents,
or the presence of any particular civic or ecclesiastical official essen-
tial to the due celebration of marriage. I need scarcely say that such
certificates are on their face erroneous.

*< 7our remark that the practice of granting certificates as to both
status and marriage laws ^has existed at this [your] consulate for
many years past;' and aftey saying that you recognize * the propriety^
of the Department carefully inquiring * into the competency of a con-
sular officer authorized to give certificates of this character,' you pro-
ceed to give reasons why you, from your prior experience and knowl-
^Ige, and from the books at your command, are to be considered as
^ competent ' to give such certificates.

8. Mis. 162— VOL III 02 977

$261.] APPEKDDL

^' It is evident that yoa have misapprehended the metamg and m^
plicatioD of the word ^competent,' as used in the cireolar order. It had
DO bearing upon the individoal qualifications of the partieB addrcascdy
nor their capacity as legal experts, but related boMj to the extent of
their official functions and their official capacity or eompetmicj to per-
form certain acts. No reflection was implied or intended upon yoor
professional attainments as a lawyer nor your ability to give relnbto
opinions in the line of that profession.

^* But as it is not within the competence of any oAeer of the execa-
tive branch of this Crovemment to create new law or in any d^;iee to
exercise legislative powers, it is equally outside of execntiTe duty or
IK>wer to invade judicial functions and to certify eongtruelian ai laws.
The Hatui of the parties to a projected marriage may be a matter of
contestable fact, and 'Equally the legal requisites of marriage in a par-
ticular jurisdiction may be a matter of contestable law. To neither of
these is a consul of the United States legaUy competent to certify.

<< It is proper for this Department and its representatives to advise
citizens of the United States proposing to marry in foreign countiies
to comply in all respects with the lex tod of the solemnization, but it
cannot authorize its representatives to certify to disputed or disputable
facts, nor as to the condition of law throughout the United States.
Certificates of such a character having no legal authority could have
no effect whatever on the judiciary before whom such questions of lair
or fact would necessarily come for decision. Many illustrations coald
be given of the danger of exposing marriages contracted abroad in re-
liance upon such official certificates to being invalidated by the sntee-
quent judgments of courts having jurisdiction of the parties and the
contract.

<<The order in question is intended to restrain the official action of
consuls, bat in no degree to prohibit unofficial advice and counsel to
individuals, or giving personal opinions or testimony as to laws or facts
with which the consuls themselves may be fanuliar. The inhibition ap-
plies only to official certification of facts or law outside the scope and
function of official duties and power."

Mr. Bayard, Sec. of State, to Mr. Walker, Apr. 7, 1887. MSS. Inst., Consuk.

That a marriage valid by the law of the place of solemmzatioQ is
valid everywhere, see Mr. Adee, Acting Sec. of State, to Mr. Win-
chester, Jan. 30, 1886. MSS. Inst., Switz.

** I have received your No. 370, of the ad ultimo, in which you re-
quest that this Department reconsider, so far as the legation of the
United States in France is concerned, the recent circular of Febraary
8 last, instructing the diplomatic agents, consuls, and consular agents
of the United States to refrain from certifying officially, without the
special authority of this Department, as to the status of persons domi-

978

§261.] MARRIAGES ABROAD.

ciled ia tho United States aad proposing to be married abroad, or as to
the law in the United States or in any part thereof, relating to the sol-
emnization of marriages.

« The question to which the circular relates being one of very grave
importance, the Department has given it the most carefnl consideration
before and since the issoance of this circalar, and has found no reason
to change the conclusions therein stated. Whilst always solicitous to
aid in every proper way and by all legitimate means citizens of the
United States in foreign lands, the Department is of opinion that in
resi>ect to marriage there are more important considerations than that
of ihe mere convenience of the contracting parties. As was said in the
circular, ^If citizens of the United States desire to be married before a
foreign officer who requires information as to their individual stiittis and
the laws of their domicil, the information can be obtained from persons
familiar with the facts, or from experts acquainted with the laws of
such domicil ^ and in matters involving the validity of marriages and
the legitimacy of children, too great trouble in this respect cannot be
taketi.'

^'It appears, however, from your dispatches, as well as from other
sources, that in recent years a practice has sprung up in France and
certain other countries, of diplomatic and consular officers of the United*
States giving official certificates not only as to the personal status of
Americans desiring to be married abroad, but as to the law of their sup-
posed domicil in respect to the forms of solemnization of marriage.
This arose in France [as you state in your No. 370] from the fact that
it was deemed necessary, under the law, <for an American desiring to
be married in France to produce an official document showing when
and where he was bom, and to furnish evidence that, if he is above age,
he can marry in the United States without the consent of his parents,
and that publication of banns is only necessary where the marriage is
solemnized.'

<< But all these requisites could, it is supposed, be proved, and before
the practice in question sprang up must have been proved, by other
evidence than the official certificate of a consular or diplomatic officer
of the United States; and although such certification may be the most
convenient form of proof, there are, in the opinion of the Department,
serious objections to its use for the purpose indicated. Aside from the
impropriety of consular or diplomatic officers certifying generally as to
the law in different parts of the United States, such certification as you
describe requires a judgment upon matters of fact. It is obvious that
such a judgment, while it may expedite the performance of a marriage
ceremony, is not conclusive as to the validity of that ceremony, and is
not known to be receivable as evidence by judicial tribunals before
whom the marriage might be called in question. ISTeither is it known
to be receivable, under the laws of France, by the French magistrates;
and this doubt is increased by the statements in your No. 334 that

979

APPEXDDL Ji2tJl.

^lien the practice of ift8aiDg the certificates in qnestion b^;ao thej were
IrequeDtlj rejected by the French mayors; that 'giadnaUy, however,
the practice established itself, and the Dake Decazes, niiniitfAP of
foreign affairs, having coantenanced and reoommended it — althoagb
tmoficially— it was respected by the French anthorities; bat that even
now, occasionally, a new mayor or an unreasonable sabordinate refoses
•one or more of these papers and compels thereby the legation to aek
the interposition of the higher anthorities.'

^^ These statements suggest two conclusions: (1) That there is no law
tbat makes those papers comj^etent evidence in France of what they
7>iirport to prove; (2) that their reception is a matter of grace, broa^t
about or aided by the unofficial advice of the French minister of foreign
affairs acting, it may be presumed, on the assurance of the minister of
the United States that the marriages of Americans upon snch certifi-
cates would be valid in the UDited States.

^< It is, as stated in Department's circular of February 8, a principle of
international law, recognized throughout the United States, that a
^solemnization of marriage, valid by the law of the place of solemniza-
itiOB, will be regarded as valid everywhere.

-^This rule is the principal safeguard of persons marrying abroad and
nvhen it is relaxed in favor of the law of the domicil of the parties, it is
>important that the greatest care should be taken to ascertain what that
law is, in order that the ceremony may not only be performed, bat per-
formed validly. The Department is not, however, aware that the law
of France in respect to marriage makes any difference between citizens
^nd foreigners. It was declared at the time of the preparatiou of the
French codes, in answer to the question of the First Consul, with respect
to marriages of foreigners in France, ^foreigners residing in France are
.'Subject to French law.' (See article on the International Law of Mar-
irtage, by the late W. B. Lawrence, 11 Albany Law Journal, 33.) It
19 true that the French law may, as to certain elements of personal
capacity, employ the law of the domicil as the test of such capacity, bat
the Department is not informed that under that law the requirements
^ef a valid marriage between foreigners are in any other respects differ-
fcnt from those of a marriage between citizens.

^< Now as to the personal status or capacity of the parties to a projected
marriage, there may be both questions of contested or contestable law
2ind of contested or contestable fact ; and to neither of these is a diplo-
matic or consular officer of the United States competent to certify offi-
cially. In an instruction to Mr. Fay, minister of the United States to
Switzerland, under date of November 12, 1860, Mr. Cass said that when
-^ the inquiry is made in Europe how a marriage must be celebrated theie,
not only to be valid but to carry with it its proper rights in the United
States, no general answer can be given to the question. The answer
must embrace not only the provisions of the laws of the United States

980

MARRIAQES ABROAD. [§ 261^

80 far as regards the places governed by those laws, bat must embrace^
also the laws of thirty-three States, beside the Territories.'

'<It may bo observed that Mr. Cass, while Secretary of State, gav^
special attention to the sabject of foreign marriages, and it was by his^
instmction, which has never been revoked, that an end was put to the
practice of performing marriage ceremonies in legations, in supposed
conformity with the law of the place of the American domicil of the^
parties. So decided was he in the opinion that the lex loci celebrationis-
should be followed, that on the occasion of the marriage of his own
daughter, while he was minister of the United States at Paris, to the
American secretary of legation, he did not consider the marriage of
the parties at his hotel as sufficient, notwithstandiDg their extraterri-
toriai immunities, and after taking the advice of the most eminent
French lawyers, obliged the parties to be married at the mayoralty and
to fulfill all the formalities required of a French citizen by the Code-
Napoleon. (11 Alb. L. J., 34.)

'^ In your Ko. 334, of December 31 last, you inclosed blank forms of
the certificates which the legation has of late years been issuing. The^
first of these states generally that proof having been made to the lega-
tion of certain facts as to the birth of a certain person, it is given to
take the place of an extract from the register of the civil state. The
second certificate states that according to the terms of the Americai^
laws the consent of parents is not necessary to a marriage of per-
sons twenty -one years of age. The third form states that, according^
to the American laws, the publications of the marriages of Americansy
celebrated in a foreign country, is not required at the domicil of th&
parties in the United States.

'' The second of these certificates is regarded as the least ox)en to ob^
jection, and may, indeed, be regarded in the light of a ^certificat der
coutume^ twenty-one years being the age of majority and emancipatiosk
from parental or other control all over the United States.

^^The first is open to the serious criticism that, while it takes the^
form of an official judgment upon questions of fact, it is not authorized
by any law, and while it may expedite the performance of a marriage
ceremony, would not, as has been already remarked, necessarily be re^
ceived by any judicial tribunal before whom the marriage might be-
called in question, as evidence of the facts stated. The third form or
certificate states a general conclasion of law, which the Department is-
not competent to authorize. Publication of banns is a matter under tbe>
regulation of the different States and Territories, and this Department
certainly is not competent to declare what the law in this relation eT
those States and Territories either is or may be ascertained by tbeir
judicial courts to be. The danger of such an attempt is shown by Cir^
cular No. 39, to which you refer as furnishing reliable informatioDw
The requisites of a valid marriage in the different States and Tenri-

981

§ 261.] APPENDIX.

tories are sometimes matters of jadicial ascertainment, as well as of
statutory enactment. For example, Circolar "So, 39, in giving the
requisites of a valid marriage in Massachusetts, wholly omits to state
what has since been decided by the supreme judicial court of that Com-
monwealth, that a consensual marriage, without the presence of an
officiating clergyman or magistrate, and to which neither party was a
Friend or Quaker, is invalid (Com. v. Munson, 127 Mass., 459). It has
also recently been held in the District of Oolumbia that a marriage in
the District by consent, without some religious ceremony, is not suf-
ficient to make a valid marriage by the law there existing.

'^ In a general note to Circular No. 39 it is stated that in ^ the several
States and Territories penalties are imposed by the statutes for a &il-
ure to comply with the requirements as to license or return of the cer-
tificate • • •; but in none of the States or Territories is the marriage
null and void because of a non-compliance with the requirements of the
statute.' It is, however, understood that by an old statute of North
Carolina marriages solemnized without a license first had are null aod
void, and the same rule has been held to exist in Tennessee, where the
statute of North Carolina was in force. (Whart Con. of L., § 173, note
1, 2d ed.). Whether the same rule would beheld to be in force in other
places in the United States, under the special provisions of statates,
it is not within the province of this Department to declare, and can
only be coiyectured.

<< It is important to observe that in recent years the tendency of the
courts in the United States has been to require a stricter compliance
than formerly with forms and ceremonies in the solemnization of mar-
riages. As population has increased, and the difficulty of complying
with forms has been diminished, considerations of convenience have
been given less and less weight. And, on the other hand, there has
been a growing tendency both in legislation and in judicial decisions
to place some check on inconsiderate and informal alliances.

^< Under these circumstances it would be highly inexpedient for this
Department to undertake to declare in advance what may be the deds-
ions of the judicial branch with whom the sole power to decide in these
important matters rests. The function of delivering judgments, whether
orally or in the form of certificates, is wholly judicial, and is not under
our system confided to the executive branch. The authentication of a
statute, or other matter of record, may be the duty of an executive offi-
cer, but not to declare its effect.

<' Holding these views, it would be a breach of duty in this Depart-
ment to authorize its diplomatic or consular agents to issue, in matters
which from the nature of things are uncertain, certificates which, if
erroneous, would be productive of consequences so disastrous as the
illegitimation of marriages, however innocently solemnized, on the fiiith
of such certificates, and the bastardizing of the issue of such marriageSi

982

EXTEADIIION: FISHERIES: ABBITEATION. [§§268,303,316.

^^All these serious responsibilities and dangers are avoided by the
parties conforming to the lex loci celebrationis.^^

Mr. Bayard, Seo. of State, to Mr. McLane.May 9, 1887. MSS. Inst., France.

§ 26S.

'NO EXTKADITION WITHOUT TBEATY.

The United States GoTemment ^< has always acted on the assumption
that our legislation gives to consuls in countries of extraterritorial
jurisdiction no right of decreeing extradition, whether to the United
States or to a third country demanding the fugitive. Although our
treaty of 1830 with the Ottoman Porte gives to the United States extra-
territorial jurisdiction in Turkey in all criminal cases, yet recognizing
that it did not embrace the function of extradition, and that our laws
confer no such authority on our representatives in Turkey, a formal
treaty of extradition was entered into with the Porte, August 11, 1874,
and has been duly executed during a term of years."

Mr. Porfer, Acting Sec. of State, to Mr. Hubbard, Feb. 3, 1886. MSS. Inst.,
Japan.

That there should be no extradition without treaty, see Mr. Bayard,
Sec. of State, to Mr. Hubbard, Mar. 7, 1886, MSS. Inst., Japan } same
to Mr. Parker, Apr. 2, 1886, MSS. Inst., Oorea.

That Japan surrendered a fugitive from justice in 1886 without treaty,
4see same to same. Mar. 24, 1886 ; ibid.

§303.

FISHEBY TBEATIES APFECTED BY WAB.

In 1768 the law of&cers of the Grown gave an opinion that the fishery
•clauses in the treaty of 1686 with France were permanent, and not af-
fected by subsequent war.

2 Blaine's Twenty Years in Congress, 617 ; 2 Chalmers Op. Eminent Lawyers,
344. See more fully tupra, $$ 150, 303.

S 316.
tJNANlSMITY OF ABBITBATOBS.

The following was inadvertently omitted in the first edition.

<<The question presented on the face of the award of the Halifax Oom-
mission, viz, whether the concurrence of the three commissioners in their
award was required by the treaty, was made a matter of public dis-
cussion both in Great Britain and in the provinces before and during
the sitting of the commission. In this discussion, so far as it has fallen
under my notice, the legal, political, and popular organs of opinion
4seemed quite positive that this unanimity was required by the treaty.
In this country the matter was little considered, either because the
British view of the subject was accepted, or because complete confi-
dence in our case, on its merits, superseded any interest in the question.

983

^316,] APPENDIX.

Tbe point comes up now for the first time for conslderatioii between
the two Governments, and will need attention from either only in case
Her Msyesty's Ooremment should fail to concur in the views of this
Government, whicn condemn the award on the grave grounds already
presented.

^^The question involves nothing more than the interpretation of the
treaty, and it is quite clear of any intermixture with the substance of the
award, as satisfactory or unsatisfactory to either party. It turns, first,
upon the mere text of the treaty; and, second, upon the surrounding
circumstances and the different subjects to be treated by the various
boards of arbitration framed by the Treaty of Washington, so far as
they may be rightly resorted to in aid of a just construction of the text.

"By the Treaty of Washington, four boards are constituted for the
determination of certain matters to be submitted to their respective de-
cisions:

"First. The Geneva Arbitration was composed of ilve members, iu
regard to whose deliberations and conclusions Article II of the treaty
expressly provides that 'all questions considered by the tribunal, includ-
ing the final award, shall be decided by a majority of all the arbitrators.'

" Second. A board of assessors under the Geneva Arbitration, in
case the tribunal should not award a gross sum, was to be comfiosed of
three members. In the action of this board. Article X of the treaty
declares that ' a majority of the assessors in each case shall be sufficient
to a decision.'

" Third. A commission of three members, to determine reciproc al claims
between the two countries arising during the civil war. Article XII'I
provides that ' a majority of the commissioners shall be sufiicient for
an award in each case.'

"Fourth. The Halifax Commission, composed of three members, an-
distinguished, among themselves, by any ascription of umpirage to
either, and with no provision in any form for an award by less than the
whole number. The treaty expressly accepts awards, signed by^the
assenting arbitrators or assessors or commissioners under the other
articles, while in the case of the Halifax Commission, this provision
takes the place of such acceptance : 'The case on either side shall be
closed within a period of six months from the date of the organization
of the commission, and the commissioners shall be requested to give
their award as soon as possible thereafter.'

" The argument from this comparison is obvious. The high contract*
ing parties possessed a common system of jurisprudence, according to
which a reference to arbitrators^ ex vi termini^ required the award to be
the act of the arbitrators — that is, of all of them. The parties to an arbi-
tration, public or private, might accord to any lesser number the power
of award, but express stipulations in the submission alone could carry
that authority. Acting in full view of this rule, to V7hich a desired ex-

984

ARBITRATION. [§316.

ception needed to be expressed in three cases, in the same deliberate
and solemn instrnment, the high contractiag parties imparted the an-
thority to a majority by careful and solicitous provisions to that end.
In the case of the Halifax Commission, last in the order of the treaty,
and with the previous arrangements in this regard in their minds and
under their eyes, this power is withheld.

*'It is impossible, because it is plainly irrational, to say that a treaty
provision containing power to a majority to bind, and a treaty provision
expressing no such authority, mean one and the same thing. The high
contracting parties have excluded any such conclusion by the sedulous
discrimination which the text of the treaty discloses.

"To the countervailing suggestion that this variation from the system
of the treaty, in the case of the Halifax Commission, is most reasonably
accounted for by inadvertence on the part of the high joint commis.
sioners, the answer is obvious. If either of the high contracting parties
should so allege, which it certainly would not do without much deliber-
ation, the suggestion would not affect the argument as to the meaning
of the treaty as it stood, but would be in the nature of an appeal to
the other high contracting party to waive the objection and reform
the treaty. Ko doubt cases may exist where such appeals should be
frankly responded to, though against interest.

. "But you will say to Lord Salisbury that the suggestion of inadvert-
ence in the negotiations, never to be lightly indulged in, overlooks an
adequate and, presumptively, the real reason for the requirement of
unanimity in the case of the Fisheries Commission, while it was expressly
waived in the other submissions of the treaty.

" In the matters of computation submitted in the several other refer-
ences of the treaty, two circumstances distinguished them from that
submitted to the award of the Halifax Commission. First, they were
wholly matters of determinate proof-— an appraisement of the ships and
cargoes destroyed by the Alabama and her consorts — an estimation of
damages to persons or property suffered by individual British subjects,
or American citizens, for which reparation should be made : these were
matters of definitive affirmative proof, in pounds or dollars, before any
award could be asked, and were subject to correction by equally definite
opposing proofs before any award could be granted. Second, the assess-
ments carried no measurement of any still-subsisting interests between
the high contracting parties which would survive the payment of the
several awards. It was, then, quite suitable to the these references to
accept the judgment of a majority and dispense with the concurrence
of both parties, as represented in the Commissions, in the result of the
contentions before them."

Mr. Evarta, Sec. of State, to Mr. Welsh, Sept. 27, 1878. MSS. Inst., Gr. Brit.;
For. Rel., 1878.

985

^§ 321, 328, 338.] appendix.

§321.

DISPLAY OF FOHCE.

<<This instruction will be handed to you by Gommanaer Mahan, of
the XT. S. S. Wachnsett, who revisits the waters of Ecaador Jjy direction
of the Secretary of the Kavy for that parpose. Commander Mahan will
be instructed to remain within reach pending the prompt disposal of
Mr. Santos' case, and in the probable event of his release, he will be
afforded an opportunity to return to the United States on the Wachusett,
by way of Panama, should he so desire.

Mr. Bayard, Seo. of State, to Mr. Beach, May 1, IdSS. For. Bel., Idd6.

§ 328.
BiaHT OF CAPTOB TO HAUL DOWN FLAG.

<<It seems hardly necessary to say that it is not until after condemna-
tion by a prize court that the national flag of a vessel Seized as a prize
of war is hauled down by her captor. Under the fourteenth section of
the twentieth chapter of the Kavy Begulations of the United States the
rule in such cases is laid down as follows :

^< ^A neutral vessel, seized, is to wear the flag of her own country antO
she is adjudged to be a lawful prize by a competent court'

^< But afortiarij is this principle to apply in cases of customs seizures,
where fines only are imposed and where no belligerency whatever ex-
ists. In the port of New York, and other of the countless harbors of
the United States, are merchant vessels to-day^flying the British flag
which from time to time are liable to penalties for violations of customs
laws and regulations. But I have yet to learn that any ofBoial, assnni-
ing, directly or indirectly, to represent the Ghyvernment of the United
StateSi would under such circumstances order down or forcibly faaal
down tiie British flag from a vessel chai^ged wiUi such irr^gnlarity ^ and
I now assert that if such act were committed, this GovemmeBt, after
being informed of it, would not wait for a oomplaiiit from Great Britain,
but would at once promptly reprimaEnd the parties concerned in soeh
misconduct and would cause proper expression of regret to be made.'

Mr. Bayard, Seo. of Stat«, to Mr. Phelps, Kov. 6, 1886. MSB. Intt.,6r. Brii;
For. Sel., 18S6. -

For the act in this case of hauling down the flagt>f a fishing vessel
seized for breach of port rules an apology was made in « letter from the
Canadian authorities forwarded by the British Gkxvemment. See Sir
L. West to Mr. Bayard, Dec. 7, 1886. For. Kel., 1886.

§338.

CONFISCATION.

' '^ A belligerent has, in time of war, the right to seize munitions of
war or military engines in his enemy's territory, or material stored for
the purpose of conversion into such military engines. And sudi, nn-

9a6

BELLIGERENT BIGHTS. [§§ 349, 352.

questionably, was the case with the cotton in question during its storage
under the Gonfederate States control."

Mr. Bayard, Seo. of State, to Mr. Muroaga, Dec. 3, 1886. MSS. Notes, Spahi.
See ififra^ $ 356. As to cotton, see tn/ra, $ 373.

§ 349.

WANTON DBSTBUOTION IN WAR.

" Every species of reprisal or annoyance which a power at war em-
ploys, contrary to liberality or justice, of doubtful propriety in the es-
timation of the law of nations, departing from that moderation which,
in later times, serves to mitigate the severities of war, by furnishing a
pretext or provocation to the other side to resort to extremities, serves
to embitter the spirit of hostilities and to extend its ravages. War is
then apt to become more sanguinary, more wasting, and in every way
more destructive. This is a ground of seiious reflection to every n&tion,
both as it regards humanity and policy : to this country it presents
itself accompanied with considerations of peculiar force. A vasUy ex-
tended sea-coast, overspread with defenseless jtowns, would offer an
abundant prey to an incensed and malignant e&emy having the power
to command the sea. The usages of modem war forbid hostilities of
this kind, and though they are not always respected, yet, as they are
never violated, unless by way of retaliation for a violation of them on
the other side, without exciting the reprobation of the impartial part
of mankind, sullying the glory and blasting the reputation of the party
which disregards them, this consideration has, in general, force suffi-
cient to induce an observance of them."

Letters of CamiUas, No. 21. 5 Lodfj^e's Hamilton, 104.

§ 352.
SEIZURE OF NEUTBAL GOODS.

<^This Department, in its instructions to our ministers at those courts
which recognized the Southern insurgents as belligerents, has main-
tained that those nations after such recognition must be content to have
their subjects who were domiciled, as merchants, in belligerent territory,
considered as belligerents, and the same argument would embrace all
aliens residing in the enemies' country for business purx>oses or repre-
sented by agents there. It has likewise been held by the Supreme
Court of the dnited States in a case where the private property of a
noncombatant was destroyed, that property left by its owner in the
country of a belligerent is subject to the chances of war and to confis-
cation by the other belligerent.

<^ A similar rule was enforced in the case of the losses of British sub-
jects through the Dutch bombardment of Antwerp in 1830, and was
assented to by Great Britain and all the other powers whose citizens
suffered loss. The same was the case with the property of American
citizens in Kaples in 1807, and likewise in the case of losses incunnsd

987

§ 356.] APPENDIX.

by foreigners by our bombardment of Greytown, in 1833, France and
Great Britain acquiescing.

^^If claims for losses of goods belonging to nentral owners, which
happen to be at the time of hostilities in the enemy^s territory, cannot
be entertained, how much less valid are they when goods were the sub-
ject of a voluntary contract entered into by the owners with the lead-
ers of a revolt, the two contracting parties taking the chances of loss
through the failure of the Confederacy, or of the profits to result from
its success, which doubtless would in the present case have been enor-
mous. The contracting parties were partners in a speculation in con-
traband of war, which was subject to the vicissitudes of war, and which
failed, and the resulting loss can become no basis for a claim which,
if admitted, might embarrass Spain, among other nations, as furnish-
ing a*precedent in possible future cases where the integrity of her col-
onial possessions should be at stake.''

Mr Bayard, Sec. of State, to Mr. Maniaga, Jnne 28, 1886. MSS. Xotes, Spain.

§ 356.
WAR: TERMINATION OF.

^^ I have yet to learn that a war in which the belligerents, as was the
case with the late civil wtar, are persistent and determined, can be said
to have closed until peace is conclusively established, either by treaty
when the war is foreign, or when civil by proclamation of the termina-
tion of hostilities on one side and the acceptance of such proclamation
on the other. The surrender of the main armies of one of the bellig-
erents does not of itself work such termination; nor does such sur-
render, under the law of nations, of itself end the conqueror's right
to seize and sequestrate whatever property he may find which his an-
tagonist could use for a renewal of hostilities. The seizure of sach
property, and eminently so when, as in the present case, it is notoriously
part of the war capital of the defeated Government, is an act not merely
of policy and right, but of mercy, in proportion to the extent to which
the party overthrown is composed of high-spirited men, who are ready
to submit only when their milit;^ry resources are wholly exhausted,
and not until then. This, in the summer of 1865, was the condition of
tilings in the Southern and Southwestern States of this nation. The
I>eriod was one in which the maintenance of military rule, and the tak-
ing into the possession of the United States of all the property capa-
ble of use as military resources of those States, was essential to the
permanent restoration of order, peace, and a common municipal law.
This was so from the nature of things; and such was the coarse
of public action. It is in accordance with this principle that the Su-
preme Court of the United States has formally decided that the late
civil war terminated in the particular sections of the United States at
the period designated in the proclamations of the President of the

0%&

CONTKABAND: BELLIGERENCY. [§§373,396.

United States. (Browu v. Hiatts, 15 Wall., 177 ; Adger r. Alston,
ibid^y 555 ; Batesville Institute v. Kauffman, 18 Wall., 151.) And by
the President's proclamation of April 2, 1866, ^ the insurrection which
heretofore existed in the States of Georgia, South Carolina, Virginia,
North Carolina, Tennessee, Alabama, Louisiana, Arkansas, Mississippi,
and Florida is at an end, and is henceforth to be so regarded.' Up to
and before that date the insurrection in those States was held to exist.
After that date it was held to be at an end."'

Mr. Bayard, Sec. of State, to Mr. Mnraaga, Dec. 3, 1886. MSS. Notes, Spain.
See $upraf $ 223. As to tertuination of Indian wars, see Mr. Erarts, Sec.
of State, to Sir E. Thornton. May 27, 1879 ; For. Rel., 1879.

5 373.

EFFECT OF TREATIES ON CONTRABAND.

The treaty of 1778 between the United States and France having
been annulled by act of Congress of July 7, 1798, having been subse-
quently treated by the French Government as not in force, and being,
at most, a bilateral arrangement intended to give special advantages to
France, cannot be held to give an authoritative list of articles contra-
band of war.

Mr. Bayard, Sec. of State, to Mr. Marnaga, Dec. 3, 18dG. MSS. Not4», Spain.

Neither the United States nor Spain was a party to the declaration
of Paris of 1856, and neither, therefore, is bound by the list of articles
contraband of war therein contained.

Ibid.

<^ I apprehend it to be the settled rule of international law that the
question of contraband is to be determined by the special circumstances
of each case. Horses, for example, would not ordinarily be spoken of
as contraband, yet all authorities agree that they may be so regarded
when their supply is so essential to a particular belligerent that he can-
not carry on operations successfully without them. A fortiori is this
the case with cotton and the late Confederacy. You mistake the posi-
tion of the United States, you will permit me respectfully to say, when
you suppose that it is proposed by us formally to insert cotton in the
list of articles contraband of war. We do not so propose. All we say
is that when cotton is the prime military engine or muniment of one
belligerent, then it may be seized and treated by the other belligerent
as contraband of war."

Ibid. See same to same, June 28, 1886 ; and see Young v. U. S., 97 U. S., 58. As
to confiscation, see supra, $ 338.

§396.

ISSUING OF BELLIOEBENX CBUISEBS.

Great Britain ^^ had (in 1794) a colorable ground to claim compensation
for all captures made by vessels armed in our ports, whithersoever car-

089

§ 402.] APPENDIX.

ried in, or howsoever disposed of, especially where their equipment had
been tolerated by oar Government.''

Mr. Hamilton, " Camillaa.'' 5 Lodge's Hamilton, 42.

<^ The Sieur Gannin^ham, captain of an American armed vessel, after
having wasted the British commerce, entered the port of Dunkirk. He
there disarmed his vessel, and declared that he was about to load with
merchandise for one of the ports of Norway. As this declaration ap-
peared suspicious, security was demanded of Cunningham; he pre-
sented two, the Sieurs Hodge and Allen, both British. Canningham
sailed in reality from the port of Dunkirk without being armed; but
clandestinely, and in the night, he caused seamen, guns, and warhke
stores to be put on board his vessel, which was in the road. He set
sail and in a short time made prize of a British packet-boat, the Prince
of Orange. As soon as the French Government was made acquainted
with the fraud of Cunningham, they caused the Sieur Hodge, one of
his securities, to be arrested and conducted to the Bastile; and the
packet-boat was restored to the court of London without further trial,
because the offense of Cunningham was evident and public."

Observations on the Justificative Memorial of the Coarc of London, by Pierre
Augnstin Caron de Beanmarchais, English translation, Philadelphia, 1781.

My attention was directed to this case by the Hon. A. B. Hagner,
of Washington, who presented Sk copy of the rare pamphlet from
which it is cited to this Department in 1870. Of this pamphlet, Hon.
Caleb Cushing, in a letter to Hon. A. B. Hagner, of January 7, 1874,
speaks as follows :

<< The memoirs which it contains are of the highest x)ossible historical
and juridicial value. The English memoir was written by Edward Gib-
bon. The several memoirs constitute the first example and precedent of
regular discussion of the great question. Under what circumstances
may a neutral Oovemment recognize the independence of the rebels or
seceders of another and a friendly Gk)vemment t

« My knowledge of these memoirs is derived from the ^ Code Cei^brt'
of Martens; but I find, to my surprise, on comparing Martens with
your English copy, that the original has been greatly mutilated by
Martens."

A copy of this pamphlet, printed in 1779, is in the Harvard University Libnrj.

The expeditions of Cnnniogham (or Conyngham) are narrated in detail in
Hale's " Franklin '' in France, 136, 174, 309, 346-6, 375.

See also the same work for notices of the French evasion of their own neii-
trality laws in rendering aid to American privateers prior to the decla-
ration of war hy France against England.

§ 402.
VIGILANC3E AS TO NEUTEALITY.

^'The complaint that Mr. Baiz makes is, that the steamship City of
Mexico, a passenger and freight vessel, claimed to be entitled to cany
the flag of the United States, took on board at Belize, January 12 last,
when on her ordinary coasting route, some political refugees, who it is
supposed were meditating hostile action against the Government of
Honduras.

SEA LETTERS. [§§403,410.

<^ It will scarcely be contended that an act snch as this, even supposing
it would be regarded as a breach of neutrality if committed within the
jurisdiction of the United States, can be imputed to the United States
when eonunitted in a foreign port; nor can it be justly urged that, be-
cause the vessel in question sails under the flag of the United States, it
IS the duty of this Government to send cruisers to watch her to prevent
her from committing breaches of neutrality when on her passage from
one foreign port to another. For this Grovemment to send armed ves.
sels to such ports to control the actions of the City of Mexico would be
to invade the territorial waters of a foreign sovereign. For this Oov-
emment to watch its merchant and passenger vessels on the high seas,
to stop them if they carry contraband articles or passengers meditating
a breach of neutrality, would impose on the United States a burden which
would be in itself intolerable, which no other nation has undertaken to
carry, and which the law of nations does not impose.

<< In what has been stated I have referred exclusively to the interna-
tional obligations imposed on the United States by the general princi-
ples of intematioDal law,- which are the only standards measuring our
duty to the Grovemment of Honduras. Whether the Gity of Mexico,
when she returns to her home port, or those concerned in her or in this
particular voyage, may be subject to adverse procedure under our neu-
trality statutes, I have not deemed it necessary here to discuss or de-
cide.^

Mr. Bayard, Sec. of State, to Mr. Hall, Feb. 6, 1886. MSS. Inst., Cent. Am. ;
For. Bel.y 1886. On this topic, in connection with right of search, see able
articles by President Welling in Nat. Int., for Jane 1, 1858, and other issues.

§403.

MUNICIPAL STATUTES NOT EXTBATEBBITOBIAL.

^^ Breaches of neutrality may be viewed by this Government in two as-
X)ects: First, in relation to onr particular statutes; and, secondly, in re-
spect of the general principles of international law. Our own statutes
bind only our own Government and citizens. If they impose on us a
larger duty than is imposed'on us by international law, they do not cor-
respondingly enlarge our duties to foreign nations, nor do they abridge
our duties if they establish for our municipal regulation a standard less
stringent than that established by international law."

Mr. Bayard, Sec. of State, to Mr. Hall, Feb. 6, 1886. MSS. Inst., Cent. Am.
For. Bel., 1886.

MIO.
ship's PAFEBS and sea LETT£BS.

^<A like question is now asked as to foreign-built vessels purchased
and owned by citizens of the United States, vks, whether the act of 1884,
chapter 121 (June 26, 1884), includes these amongst those vessels for
services to which consuls are not to charge fees.

$ 410.] APPENDIX.

'< Inasmacli as in the same connection in which that statute provides
for the fees in question it espressly refers to and o^ierates upon the
^Consular Eegulations, issued by the President,' and as the term
'American vessel' is one employed passim in such regulations, I am of
opinion that it has the same meaning in the statute (§ 12) as in the
regulations.

'^XJpon a perusal of these regulations I do not find that the termin
question is applied by them to designate foreign-built vessels purchased
and owned by citizens of the United States. It seems rather, so far as
I can determine, to be employed synonymously with that other term so
usual with us in both statutes and regulations, viz, ' Vessels of the
United States.' (See, e. g.. Beg., §§ 111, 128, 210.) I do not know
whether there has been in your Department any long-continued prac-
tical administration of these regulations to the effect that the term
* American vessel ' therein contained includes in any case as well foreigiL
built ye&sels owned by citizens of the United States. Such practioe
would, of course, be entitled to great respect, otherwise, however, I con-
clude as above; and consequently that the act of 1884 does not exempt
such foreign-built ships owned by citizens from the fees in question.^

Mr. BrewBter, Atty. Gee, Feb. 5, 1885. Misc. Letters, Dept. of State.

^< Vessels not built in the United States owned by citizens of the
United States are recognized by the statutes of the United States as a
class of sea-going vessels. They are the property of American citizens,
entitled to bear the flag and receive the protection of the Government
(6 Op., 638; 16 ibid., 533; Consular Beg. (1881), § 344.) But^ with the
exceptions made iu the statute, they are not ' vessels of the United
States.' (Bev. Stat., §§ 4132, 4133.) Are they ^Amencan vessels,' within
the meaning of twelfth section of the act, chapter 121, approved Jane
26,1884!

<< A careful examination of the statutes convinces me that the expres-
sions ^ vessel or ship of the United States ' ^American vessel of the
United States,' and 'American vessel ' are used synonymously, and
apply only to regularly documented vessels. And in the Bevised Con-
sular Begulations (1881), § 200, for the purpose of those reifulationa,
the terms < American vessel ' and ^ vessel of the United States' are de-
clared synonymous. In both statutes and regulations are many pro-
visions relative to foreign-built ships owned by American citizens, and
the designation is in that distinctive language. In the statute, the
twelfth section of which is under consideration, both terms, < vessel of
the United States' and < American vessel' are used, and in view of the
previous statutes and regulations must be considered, I think, as used
interchangeably.

*^ I conclude, therefore, that foreign-built vessels owned by citizens
of the United States are not embraced in the provisions of the act of

902

SEA LETTERS. [^410.

1884 forbidding the collection of fees by consular officers from Ameri-
can vessels."

Mr. Garland, Atty. Gen., July 20, 1885. Misc. Letters, Dept. of State.

The following opinion in reject to the privileges of foreign-bnilt non-
registered vessels owned by citizens of the United States was given
in April, 1887, to the editor, by Morton P. Henry, Esq., of the Philadel-
phia bar, author of a recent treatise on Admiralty Jurisdiction and
Procedure:

THB RELATION OF FORSIGN-BUILT VESSELS WHOLLY OWNED BY AMERICAN CITIZBNS

TO THE LAWS OF THE "UNITED STATES.

The pablication of the Litem ational Law Digest of the United States, edited by
Dr. Wharton of the Department of State, calls attention to the sabject of this article,
which at the time of the Eoropean wars under the Directory and Consnlate became
a matter of grave consideration by the United States, and in the near fatare may
again rise into importance.

It most be taken for granted that in regard to foreign nations the political depart-
ment of the United States has declared that aU vessels owned exclusively by citizens
of the United States are American property, and are covered by the protection of the
American flag, in any qnestion in which neutrality is involved, without regard to the
origin of the vessels ; and the courts hold that a warranty of the American nationality
of such vessels is fulfilled by American ownership independently of registry as a ves-
sel of the United States.

Such vessel property is also by statutes of the United States entitled to documents
from the Government of the United States to enable the owners of such vessels to
claim American protection (Bev. Stat., $$ 4190, 4306); and such vessels were ex-
empted by statute from the payment of the same light dues as were imposed upon
foreign vessels. (Rev. Stat., $ 4226.)

The importance of this last section consists in this : it repeats the provisions of the
act of March 3, 1805, the title of which reads '' An act to amend an act for imp«)sing
more specific duties on the importation of certain articles, and also for levying and
collecting light money on foreign ships or vessels, and for other purposes."

The act to which this was an amendment was passed in the previous year, 1804,
the sixth section of which imposed '' a duty of fifty cents per ton on all ships or ves-
sels not of the United States, which after the aforesaid 30th day of Jnne next may enter
the ports of the United States." (Rev. Stat., $ 42*25.)

The act of 1805 was intended to relieve ve«sels owned by Americans from the pro-
visions of this act, and place them on the same footing as vessels of American origin
as well as of American ownership, and also to provide the documentary evidence of
such American ownership to obtain the benefit of exeraptiou.

The act of 1805 did not create American nationality for such foreign-built vessels.
When the act of 1804 was passed, the words vessels of ike Vniitd States had received a
recognized meaning which designated vessels built in the United States and belong-
ing wholly to citizens thereof (Rev. Stat., $$ 4131, 4132), which, as used in the act of
1804, imposed upon all other vessels, whether foreign or American, higher duties than
on vessels of the United States. This act placed these vessels as to light dues in the
same position as registered vessels.

The American character of such vessels is also recognized in $ 4308, Rev. Stat.,
in the words of the act of March 2, 1803, " Every unregistered vessel owned by a citi-
zen of the United States and sailing with a sea-letter, going to any foreign country,
shall, before she departs from the United States, at the request of the master, be fur-
nished by the collector of the district where such vessel may be with a pa8sp<»n, lor

S. Mis. 162— VOL III 63 993

§410.] APPENDIX.

the flag of the United States ; and that snch yessels which had become in good futh
the property of citizens of the United St^^ee wonld loee their character as enemiefl^
property and become neatral as regards either of the belligerents, and that the qnes-
tidn as to the disabilities which the mnnicipal mles of the Govemment of the ownezt
might impose on such vessels did not concern other nations nor affect their nation*
ality.

He only expressed views preyionsly adopted by his Govemment. He snstatned
them, however, with his nsnal consummate ability; they have never been departed
fh>m. His position has been reiterated by sacceeding Secretaries of State, and simi-
lar opinions have been given by other Attorneys-General.

The ^transfer of the Chinese merchant fleet to American citizens, who placed the
vessels nnder the flag of the United States daring the late hostilities between Chins
and France, was not questioned by the Govemment of France, nor do the vessels ap-
pear to have been molested, although the position taken by the United States was
contested by France dnring the Russian war on the ground that enemy-built vesseli
cannot be made neutral after hostilities break out. (3 Wharton's Dig. Int. Law, 032.}

So far as the international side of the question is concerned the position of saeb
vessels is fixed.

Although the right of such vessels to carry the flag of the United States has been
discussed in two late papers, there could hardly be occasion for such a question. A
vessel's flag is only its signal to other vessels at sea.

The national bunting displayed is a communication to other vessels of the nation-
ality of her owner, as her other signals are used to convey the name of the private
owner, or of the line to which the vessel belongs.

There is no statute which authorizes ** vessels of the United States " to carry a flag.
The absence of a statute is unmeaning. There is no statute requiring any vessel U>
do so. Yet the right to carry a flag is recognized in the laws of war, and the abase
of the flag may procure the condemnation of a vessel.

The Treasury regulations, article 93, which declares such vessels entitled to the
protection of the authorities and flag of the United States, recognizes the rights of
these vessels to carry it.

The word ** flag," when used either in public or private international law, in mari
time subjects, designates the nationality of the vessel, arising from ownership, and the
'' law of the flag" is that which ascertains when a transaction is governed by the law
of tfie country where the owner of the vessel resides, nnder which the master holds
his authority to bind the vessel or its owner, or which governs the internal discipline
of a ship or its liability to others. Expressions also have been used at times, with some
looseness, in the maritime law, in which a vessel is spoken of as having a personality
of its own, in reference to its liability in rem, independentlyof that of its owners. Sncb
expressions are used by way of illustration, not of definition, and in this respect a vessel
does not differ from other kinds of property ; even real estate may in the same man-
ner be considered as offending or guilty as well as indebted.

These expressions are used, however, with regard to an entirely different subject
A vessel as a subject of nationality is not considered a personality any more than soy
other chattel, and cannot have any other nationality impressed on it except that arm-
ing from ownership. The place in which a vessel is built does not give it nationality
any more than the place of origin affects that of its cargo. It is the residence of the
owner which stamps alike the vessel and its cargo with its national character.

President Woolsey writes as follows :

** It is unsafe, then, to argue on the assumptio^i that ships are altogether territory, a*
will appear, perhaps, when we come to consider the laws of maritime warfare. Oo
the other hand, private ships have certain qualities resembling those of territory;
(1) As against their crews on the high seas ; for the territorial or mnnicipal law ac-
companies them as long as they are beyond the reach of other law, or until they oone
within the bounds of some other Jurisdiction. (2) As against foreiguers who are ei-

996

SEA LETTERS. . [§410

eluded on the high seas from any act of sovereignty over them, just as if they were
a part of the soil of their country. Public vessels stand on higher ground ; they are
not only public property, built or bought by the Government, but they are, as it
were, floating barracks, a part of the public organism, and represent the national
dignity, and on these accounts, even in foreign ports, are exempt from the local juris-
diction.

*Un both cases, however, it is on account of the crew rather than of the ship itself
that they have any territorial qualities. Take the crew away, let the abandoned
bulk be met at sea; it now becomes property and nothing more." (Woolsey Int.
Law, $ 54.)

While these views of the distinguished author are not exact in making the national
character of the vessel depend on that of its crew or inhabitants, it correctly illustrates
the position that the nationality of the vessel is derived from the personal relation of
the individuals who own it ; because » member of the crew in this way becomes nation-
alized temporarily by inhabiting the vessel, in the same manner as a foreigner obtains
or loses a qualified nationality by domicile or residence in the enemy's country. For
this reason the right to registry is suspended by the residence abroad of the Ameri-
can owner of a vessel of the United States. (Rev. Stat., 4133.) Mr. Wirt, the Attor-
ney-General, decided that the right to nationality of such vessels was not lost but
only suspended and that the vessel could be registered anew on the return of its owner
to the United States, although the vessel had been placed, while the owner resided
abroad,.under the French flag.. (1 Op., 393.)

The class of vessels owned by citizens of the United States which are called undoc-
amented vessels is recognized in the regulations of the Treasury Department as a
pan of the mercantile marine of the United States, although not coming within the
statutory definition of ''vessels of the United States."

The provisions of these regulations are contained in articles 93, 94, 95, 96^ 97 of the
general regulations under the customs and navigation laws of the United States.

These articles recognize the right of such vessel to use the flag of the United
States; authorize the collectors to record the bill of sale of such a vessel, to authen-
ticate its validity, to certify to Its authenticity and to the citizenship of the owners,
and make such authentication prima fade proof of good faith.

A form of certificate is prepared authenticating the sale, and before granting such
certificate the tonnage of the vessel is to be ascertained and inserted in thedesor^tion
of the vessel in the certificate.

A separate record is kept of these vessels, and in the tonnage returns are reported
in a separate column under the head, '' Foreign-built vessels owned in the United
States.''

This review of the legislation in regard to undocumented vessels, and the action of
the Departments in the construction of the navigation laws, is believed to be suffi-
cient to establish not only the nationality of the vessels, but their recognition as a
part of the mercantile marine of the United States. The construction of the laws
-by the proper Department, when long established and uniform, is binding upon the
■e^tjTts except in oases of very clear mistake. The same view of the national character
«f such vessels has been taken by the Department of State, the Treasury Department,
and successive Attorneys-General.

These vessels are therefore a part of ttie mercantile marine of the United States under
certain disabilities in regard to the trade of the United States. What these disa-
bilities are and what law governs these vessels on the high seas has not been fully
settled.

In construing the navigation laws of the United States in reference to a vessePs
disabilities by reason of not being a ''vessel of the United States," that is to say a
vessel built in the United States, it is to be kept in mind that these laws in their in-
ception were not a part of a protective system ; they were intended to place foreign
veAsels. efipecially those of England, under the same disabilities aa the hiw8 of England
^Uaned <Mir own.

§410.]

APPENDIX.

As the Americans coald build ships cheaper than the English, the American ship-
huilders did not require the protection given to the British ship-builder. (Reeves'*
Law of Shipping, 426, 429.)

The English, to preserve the carrying trade of the world to their own vessels, lim-
ited the4;rade to England by foreign vessels, to the importation of wares the product
or growth of the country of the vessel, the master and three-fourths of the crew being
of the same country or place. It excluded such foreign vessels from carrying between
England and her colonies, and to encourage ship-building against American competi-
tion it confined the trade carried on by British vessels, by its registry laws, to vessels
of British origin. (Reeves' Law of Shipping, 244. See also Lecky's England in the
18th Century, vol. 2, p. 9.)

The navigation laws passed in 1792 were based upon the English laws then existing.
The measures were retaliatory. We confined the benefits of registry for the foreign
trade and enrollment for the coast- wise trade of the United States to vessels of Ameri-
can origin, designating them by law as vessels df the United States.

In addition to this, in the early acts regulating importations into the Unit-ed States,
in imitation of the English act, dis'jriminating duties were imposed in favor of importa-
tions in American vessels, and subsequently, in 1817, the right to import into the United
States was confined to '^vessels of the United States" and such foreign vessels as truly
and wholly belong to the citizens or subjests of that country of which the goods are
the growth, production, or manufacture. (Rev. Stat.. 2497.) The same act, as well a»
the previous acts discriminating in favor of vessels of the United States, provided thiit
this restriction as to importation in foreign vessels should cease as to vessels of any
nation which did not maintain a similar regulation against vessels of the United States.

This restrictive legislation as to importation in foreign vessels has been abrogated
by treaties with the principal European nations.

But with the reason of the thing ceasing, the restriction still remains as to vessels-
owned by American citizens but not registered, including not only vessels of foreign,
origin but also vessels of American origin of construction which have become dena*
tionalized by a sale to a foreigner, and whose ownership has by a repurchase become
again American. These last vessels still retain all the disabilities imposed by the
original legislation and cannot be again registered. (6 Op., 383). These vessels are
in the anomalous position that while when owned by foreigners they can import the
merchandise and products of all countries into the United States, the same vessels if
owned by Americans, and placed under the American flag, are excluded from tb&
same trade they could enter into if owned by foreigners.

The denationalized vessel of American origin when owned by foreigners paid ton-
nage dues of 30 cents per ton, while the same vessel if owned by an American citizeo
paid 50 cents. (Rev. Stat., 4219.) On the other hand, this latter class of vessels bud
the advantage over foreign vessels of being exempted from the payment of light dues.
(Rev. Stat., 4226.) Tonnage dues, however, are now payable at a uniform n&te od all
vessels entered from foreign ports, not to exceed 30 cents per annum. (23 Stat. L..
57.)

In reference to the foreign trade, the disability extends only to importation in sncb
vessels. There is no statute which will prevent such vessels from coming in ballast
to the United States, or with passengers, and it can obtain a clearance with cargo.

The statutes already quoted, especially the act of March 2, 1803, recognizes the
right to clear for foreign countries with cargoes.

They are admitted also into the coasting trade of the United States from which
foreign vessels are excluded (R. S., 4.347) upon the payment of tonnage duesfirom
which enrolled vessels are exempt. (Opinion of Nelson, Atty. Gen., 4 Op., 1^.) By
this opinion its privileges are confined to the trade in domestic merchandise and prod-
ucts other than distilled spirits, and it pays on each entry the same tonnage duties
chargeable on foreign vessels. If found with foreign goods or distilled spirits on board,
the vessel is subject to forfeiture. (R. S., 4371.)

1)98

SEA LETTERS. [§410.

The coDBtroction of the Treiwury Department aa to the position of 8uch ve^suU iu
reUtlon to the foreign and coasting trade of the United States is foand in a letter of
the Treasury Department to the collector of Maohias, Maine, dated May 3, lt!f72 :

** I reply that if the Certificate Form No. 127, art. 96, part i, Rev. Reg., has been
indorsed on the bill of sale of the vessel, yon can clear her for St. John's, N. B», as de-
sired. But she cannot legally import goods, wares, or merchandise from foreign ports,
and she woald be subjected in the coasting trade to disabilities and exactions from
which documented vessels of the United States are exempted."

The law govering vessels, the character of which we are now discussing in their
relation to the laws of the United States, has been the subject of an opinion addressed
by the examiner of claims to Mr. Fish, the Secretary of State (3 Wharton's. Digest
Int. Law, $ 410, p. 679), which was approved by the Attorney-General, Mr. Akerman.
Possibly the attention of the latter was not attracted to the full extent to which that
opinion went.

The question asked was as to the duties of American consuls iu relation to this class
of vessels, under the various acts of Congress relating to the deposit of papers with
the consuls, and the shipment and discharge of seamen, and whether certain acts re-
ferred to applied to such vessels.

The result of the opiuion was that none of the acts of Congress referred to by the
Secretary of State applied to these undocumented vessels — in the following words:

" I then arrive at the conclusion that any vessel wholly owned by citizens of the
United States is entitled to the protection of the United States, and can carry the flag
of the United States, but that none of the acts, or parts of acts, referred to by Mr.
Fish are applicable to any vessel that does not have a United States register.

*' If this conclusion is right, a vessel owned by citizens of the United States, but
not built in the United States, though entitled to its protection, would yet be under
no relation thereto, or to its consuls, from which that vessel in a certain way, would
be compelled to bear part of the cost of that protection by the payment of the fees
due under existing statutes from registered vessels to the collectors, the cimsnls, and
divers other officers of the United States, but she would sail the ocean flying the flag
of the United States, entitled to demand protection from the Navy and t he consuls
of the United States, but yet without any official papers on board from officers of the
United States which would present prima facie and official evidence that she was en-
titled to carry that flag and to receive that protection.''

It is to be regretted that such conclusions were approved by the law department of
the €rovemment, for if the same reasoning were followed in the construction of other
statutes as is applied to those referred to for consideration, there would be no law
governing the relation of crews nor means of enforcing the internal discipline of such
ships ; no power to punish desertion, or to protect the seamen from cruel treatment,
or to release them on the fulfillment of their engagement. It is only in exceptional
cases that courts will take cognizance of questions in relation to seamen and the in-
ternal disipline of foreign vessels. Of crimes committed on the high seas other than
piracy there is no jurisdiction except in the tribunals of the country to which the
vessel belong^, and a serious question would arise by what tribunals crimes could
be punished on board of such ships, which happily, however, has been otherwise
disposed of by adjudication.

As every ship carries with it the territorial law of the country of its ownership,
no other nation can or will interfere with its internal affairs at sea, or even in port,
unless the peace of the port is disturbed. It is generally only at the request of a con-

None.— The ezprenAions used by JoKtice Nelson in doliTeiing the opinion in White's Bank «. Smithy
7 Wallttce, 655, 656, that TesseU not broaght within the registry and enioUment acta "are of no more
Tame aa American vessels than the wood and iron oat of which they are constructed," and of Mr*
Justice Killer in BaJger r. Gatierez, 111 IT. S., 736, 737, that a vessel of the United States without
having the proper documents on board "io a foreign Jurisdiction, or on the high seas, can claim no
righta as an American ve^.iel," were not involved or necessary tu the decision of either case.

000

§410.] APPENDIX.

Bol of the roBBel's natioa tbat the aathorities of another nation will t»lce JarUdiotioii
ofdisputeB between the luariners. They ate reluctant to do bo. Seamen of any n«-
tionalityoMOODBiderediu the law as seamenof the nation to which the TCMetbeloDgt
in the ume way ob a foreigner Bnbjecta hioiself to the law of his domicile withoat le-
ftard t« h^ aetaal cittzensbip.

It would aeem to be indiBpatahle that if the laws of tbu United States do not fol-
low these TsMsls as a part of lt« t«tTitory the laws of no other uation can altoch,
and an anomaly is presented of property reEOgnized as American viChont any law
Koveralng it except a gnorantee of neutrality against belligecents.

Such a position 1b not supported by adjudicatiouB which will be referred to, nor bf
the opinion of Mr. Berrien, the Attorney -Geueral, cited by the examiner of clalmi
in his report to the Secretary of State, as to the construction of the provisions of ths
«ct of SSth Febraary, 1S03 (1 Op., 83), which were held to be inapplicable "to tb«
mercantile marine of a foreigyi itation or people, although American seamen may b«
employed on board their resselB and American citizens muy l>e interested in them Bt
owners. It belongs to such foreign nation or people to goveru its own marine byieg.
nlations, which the master and mariners who sail under the flag of sncb nation oi
people ore hound to obscrTe, and to mhich they muit look fjr proltctioM."

The olaose sited is iuconsistent with the inference drawn by the examiner of the
State Department, that protection was to l>e denied to Amurlcan seamen sailing in a
vessel carrying their own flag, as they eonld have none from any nation whose flag
the vessel was not entitled to carry.

The comments of Mr. Berrien, AttoruBy-Qeneral, on the first three sections of tbe
act under his consideration are not suggestive that he had in view their effect on any
other class of vessels than foreign vessels.

The question to be answered was whether tbe first section of tbe act of 1603 "re-
quiring a crew-list to be furnished by the master to tbe collector before clearanoe for
a foreign port " could be construed to apply to foreign vesseU an well as American ves-

H« refers to the other sections of the same act only to sbow that they could hare
DO application to foreign vessels. They are as follows :

Tbe second Bection of tbe act of 1803 which mode it the duty of every master or
«ammander of a ship or vessel belonging to citizens of the United States to depont
his register, sea-letter, and Medit«rrsnean passport with the consnl — in terms this
aeotlon covers sncli undocumented veseels.

The third Motion of the same act under eonsideration relating to tbe consalor pro-
tection of seamen on board of vessels sold abroad ot discharged withoat their c«d-
•ent, t«fera Id its words to those of " a ship or vessel belonging to a citixen of tbe
(Jnit«d States."

The Ibnrth section provides for the mariners or seamen of tbe United States who
Bay be fonnd destitute "within the consular districts," and requires all mastenol
vessels belonging to citizens of the United States and bound to some port of the ssias
" to reoeivB snoh mariners on board their vessels at the teqaest of the conauL"

There is nothing in these two lost sections to suggest that the undocumented
vessels and their crews are ontside of consular supervision and prot«otioD, and nona
of them, except the first section, can have any hearing upon foreign vessels; or to
intimate that Mr. Berrien, when using langnage which distinctly says that the sen-
tions of the act of 1603 were confined to vessela wholly owned by citizens of tba
United States and oonstltotlng a part of her mercantile marine by sailing nndir
her flag, was not aware that foreign-built vessels had been allowed to sail nnder Ui>
flag of the United Btates, as a competent knowledge of tbe position of bis Ooven-
meat in relation to such vessels and the legiBtatiou before referred to should be st-
tributed to the highest law ofBcer of the Government.

The coDclnsions that suob uudocnmented vessels have the national character of
American vessels, and yet are not regulated by tbe system of laws enacted tu enfnrca
1000

SEA LETTERS. [§410.

<diflcipline and ti) protect seamen on board of sach vessels is not snpported by bis
opinion and cannot be accepted unless tbe legislation of tbe United States in positive
terms excludes sncb vessels and tbeir inhabitants from the operation of the laws
governing other vessels of this nature. If these oonolnsions are correct these vessels
are beyond the reach of all criminal process for offenses committed on the high seas.
Thejudioial department however hasnot adopted this view. JndgeBetts decided that
an indictment for a revolt "by one or more of the crew of any American ship or ves-
sel" under the second section of the act of March 3, 1835, Bev. Stat., $ 5359, could be
sustained by proof of American ownership, and that it was not in any way at issue
whether the vessel was entitled to the privileges of an American bottom under our
revenue laws. (U. S. v. Seagrist, 4 Blatch., 420.) Judge Woodbury held the same
way in U. S. r. Peterson, 1 Wood d& M., 305.

Judge Story's decision inU. S. v. Bogers,3 Sumner, 342, ''that the offense of revolt
by one of the crew of an American vessel, on the high seas was not punishable under
the act of 1835 when committed on board of a registered vessel of the United States
engaged in the whale fisheries, because the vessel had not been licensed and enrolled
for that trade, and the voyage was unlawful," was followed by Thompson, Ch. J., in
U. S. V. Jenkins, 1 N. Y. Leg. Obs., 344, without any approval, and for the sake of
^uniformity until reversed. It does not militate with the decision of Judge Betts or
of Judge Woodbury, which applied to revolts on American vessels engaged in a law-
ful trade.

The system of laws called the navigation laws, like the criminal laws, must be inter-
preted as effective on all classes of vessels which come within the reason for enacting
any laws at all on such subject. The use of particular words does not necessarily aff'ec t
the construction of such statutes. Take the case of The Mohawk, reported in 3 Wal-
lace, 556, where the provisions of the act of 1792, forfeiting a vessel " if any certifi-
cate of regUtry or record shall be fraudulently or knowingly used for any ship or ves-
sel not then actually entitled to the benefit hereof," were held to apply to a vessel
enrolled and not registered navigating the lakes, although vessels enrolled in the
coasting trade are not subject to forfeiture for such a cause« for the reason that an
enrollment in the lake trade, in which the voyages are partly foreign and partly coast-
wise, is equivalent to a registry for the foreign trade to which the forfeiture applied.

It will be found that in some of the statutes referred to in the opinion given to the
Department of State words are used which Include these vessels as well as *' registered
vessels."

Thus in the act referred to, of 5th Augrut, 1861 (12 Stat. L., 315), providing *
that ''American vessels running regularly, dtc., to or betweec foreign ports shall not
be required to pay fees to consuls for more than four trips in a year," includes such
vessels.

This statute naturally applies to this class of vessels whose trade is most generally
between foreign ports in which trade they are under no disabilities, and it also must
be road in connection with the statute of 1803 before referred to, requiring these ves-
sels to deposit their passports with the American consuls and in terms to comply with
the laws regulating the discharge of seamen and consular fees.

The words "American vessel" as a warranty of national character has been decided
to be fulfilled by Kent, Ch. J., in Barker v. The Phonix Ins. Co., 8 Johns R. 307, by
a vessel wholly owned by American citizens, although not registered as a vessel of
the United States, and the same decision was arrived at by Tilghman, Ch. J., in Grif-
fith «. The Ins. Co., 5 Bin., 464; and the term American vessel, as used in the statute
of March 3, ld35, applies to an offense committed on board of an American-owned
vessel although not registered as a vessel of the United States.

So also the second section of the act of February 19, 1862, referred to, entitled "An
act to prohibit tbe coolie trade by American citizens in American vessels," 12 Stat. L.,
340, embraces such undocumented vessels under the terms " any ship or vessel, steam-
liiiip or steam vessel belouging in whole or in part to citizens of the United States, or

1001

§ 410.] APPENDIX.

registered, enrolled, or licensed within the same or any port thereof— the wm ^
mast be used in the disjunctive, because a vessel owned only in part by a citixen of -^
United States cannot be registered or enrolled as a vessel of the United States.

For the same reason, in the fifth section of the same act extending the proving .^^
of the passenger acts *' to all vessels owned in whole or in part by citixens of |^^
United States and registered, enrolled, or licensed within the same," the word "^'99^9
must also be read in the disjunctive.

In the laws referred to in the opinion, except the two last, it can be found aeeonf.
jng to the canons of construction that these vessels come within some of the prorif.
ions of the statutes.

One of the strongest arguments that can be urged against including these venebio
the mercantile marine of the United States is in the fact that the law does not leqnim
the officers of such vessels to be American citizens, as in the case of legistered venels.
(Rev. Stat., $ 4131). Whether this has been from inadvertence, or because the exclu-
sion of such vessels from some of the privileges of vessels of the United States waa a
reason sufficient for relaxing the policy of confining the command of such veaael to
our own citizens, will not override the plain intent of legislation, if it can be diflcov-
ered. Whether a master is a citizen or a foreigner, his nationality while his employ-
ment is in an American vessel necessarily subjects him, like a merchant domiciled in
the United States, to the law of his vessePs flag. The reasons for excluding foreign-
ers from the command of vessels of the United States is one of municipal policy, to
encourage American citizens to enter into the merchant service, by retaining for them
the command of vessels of the United States and exclude competition by foreignen
in this calling, and are not founded on sentiment or national exclnsiveness. For-
eigners have served with distinction in high commands in the military service of the
United States, and could equally well be trusted with that of merchant vessels but
for the policy of reserving such position for American citizens.

In examining the various enactments relating to merchant seamen collected in the
Revised Statutes it will be found that some of the sections apply only to ** vessels of
the United States,'' while in others they may be interpreted to apply equally to un-
documented vessels, and in the latest legislation, section 4583 of the Revised Stat-
utes, readinn: : ** Whenever a vessel belonging to a citizen of the United States is sold
in a foreign country, and her company discharged, or when a seaman or citizen of the
United States is with his own consent discharged in a foreign country y** has been
amended by the act of June 26, 1884, section 5, so as to apply only to '* a vessel of the
United States sold in a foreign country and her company discharged." (23 Stat. L., 54.)

There seems to be a reason for amending this section in this manner, because the
original section required payment of three months' extra wages to a seaman dis-
charged with his own consent in a foreign port from such an undocumented vessel, the
nature of whose employment requires generally the shipment and discharge of its sea-
men to be made in a foreign port. The extra wages to be paid on the saie of a
vessel, and the discharge of her crew, is now only payable to the seamen of thai class
of vessels whose crews were originally shipped in the United States, and whose voy-
ages habitually ended there.

By section? of the same act (23 Stat. L., 55), section 4578, Rev. Stats., which required
masters of vessels belonging to citizens of the United States and bound to some port
of the same, to take on board destitute seamen, is amended in certain particulars,
and its provisions art) confined to ** masters of vessels of the United States bound to
ports of the same.'' No reason can be assigned for this change unless, perhaps, as
the voyages of such vessels seldom extend to ports of the United States it n.ay not
have been thought expedient to include them in its provisions. However this may
be, this change in the description of vessels included in both these sections is notice-
able in an act which, in the second, third, and fourth sections, relating to the dis-
charge of seamen before consuls in foreign ports; in the sixth section, relating to
the duty of consalar officers; in the fourth section, relating to the slop chest ; and ii>
1002

SEA LETTERS. [§410.

the twelfth seotion, aholiahing consalar fees, the same definition is not ased| and thu
wording nsed applies equally to nndoonmented and registered vessels.

These views were prepared with regard to cirenmstanoes which might have occa-
sioned a large number of foreign vessels to seek American ownership. If the views
herein expressed are not correct, the evils attending belligerent character might be
less than that of neutrality attached to the ownership of a class of vessels placed out-
side the regulation of the laws thought necessary for the protection of the crews and
owners of all other vessels of the same nationality on the high seas and in foreign ports.

Such vessels might become free lances in case of war, being protected by the
United States and under no subordination to its laws. If the opinion referred to is
adopted as that of the Department of State it would give other nations, who must
regard it as the official declaration of that Department of the GToyemment, occasion
for argument that protection as neutral property cannot be claimed for such vessels^
as the United States refuses to consider a part of its Lerritorlal Jurisdiction for the
operation of its laws, as was mistakenly supposed to be the case by the English
court in the case of Baring r. Claggett (33 B. & P., 201). A claim that such vessels
are national for the purposes of neutrality, while in no respect a part of the commer-
cial marine or controlled as to the acts of its owners and crew by the laws of the
nation whose flag it carries, would be one very difficult to maintain as a part of the
public law of the world.

The following is an extract from Mr. Henry Flanders' letter to Mr.
Bayard, dated April 30, 1887, transmitting the text of the revised Gon-
snlar Begalations, which were edited by Mr. Flanders :

^^One of the first snbjects that attracts attention in these fegalations
is the position assigned to foreign-bailt, bat American-owned, vessels.
Until the act of December 31, 1792 (Rev. Stat, § 4131), which de-
fined what sboald be deemed vessels of the Dnited States, all vessels
carrying the flag and entitled to the protection of the United States
were vessels of the United States. That act restricted the definition,
and confined it to vessels only which should be registered parsaant ta
law, etc. Gonseqaently, after the act of 1792, a class of vessels carrying
the flag, and entitled to the protection of the United States, conld no
longer be deemed vessels of the United States, nor eiyoy the benefits
and privileges conferred on this latter class of vessels. Nevertheless^
they were American-owned vessels, subject to many disabilities, and
the objects, likewise, by subsequent legislation, of certain privileges.

^< This was, and is, the status of foreign-built, but American-owned,
vessels. The question is whether, when an act of Congress speaks of
American vessels it means to include all vessels entitled to carry the
flag and to receive the protection of the United States; or does it
mean to exclude all but regularly documented vessels! The latter is
the generally received construction of all such acts, and the construc-
tion adopted in the old edition of the Consular Begulations. But such
construction at once encounters a serious practical difficalty. How can
consuls exercise any jurisdiction over such vessels! How can the
crimes act apply to the seamen on board of themt Obviously this diffi-
culty has been overcome by the assumption that protection and amena-
bility are correlative terms. And that when the protection is accorded,
and the right to carry the flag is conceded, amenability to the law of
the flag foUows."

Oflfenses committed on British owned, hnt nnreeistered, vessels on the high seas,
are cognizable by the British courts, although snch vessels are not entitled to clear-
ance from British ports as British ships, or to any benefits, privileges, advantages^
or protection nsnally enjoyed by British ships, or to nse the British flag, or assnme^
the British national character. Merchant Shipping Ad, 17 &, 18 Yict., c. 104, sees. 19^
106; B. V. Seberg, 11 Cox's C.C.,520.

1003

nm^HA

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